Can Changing the Law Lead to Sustainable Universal Open Access?

"Nothing speaks more to the law’s current failure to serve its original purpose than how diligently we work around copyright to achieve open access, whether through funder-contracts, green final drafts (with or without embargoes), and read-and-publish agreements. These increasingly elaborate epicycles resemble nothing so much as late Ptolemaic mechanical models of the solar system that misconstrued its true center. Copyright is not the sun in this system, by any means. That would be the human intellect. Yet copyright acts as a gravitational field of our own making. There is too much at stake with science to continue counting on legal workarounds, while other fields of human endeavor meet the times by amending this law. 

I am particularly struck by how the United States Congress unanimously (!) passed the Music Modernization Act of 2018. It updated statutory licensing, dating back to the Copyright Act of 1909, for streaming services, while retaining the judicial setting of fair market prices and keeping music open to new interpretations without exclusion. Why not, I wondered, use statutory licensing to require the institutional users and funders of research publications to fairly compensate scholarly publishers for immediate open access. Then and there we’d have copyright doing its job once more. ..."