Grasping at straws

“Last week, “Inside Higher Ed” ran an article about the release by the White House of all the comments submitted to the Office of Science and Technology Policy in response to their request for information about public access to federally-funded research.  I was gratified to see that they chose to quote from the comments submitted by the Duke University Libraries.  But I was also appalled when I read the quote from comments submitted by the publisher Wiley Blackwell in response to the question about appropriate embargo periods for public access.  The Wiley official wrote that ‘Any embargo period is a dramatic shortening of the period of copyright protection afforded all publishers.’ This statement strikes me as deliberately misleading.  Publishers are not afforded any period of copyright protection by the copyright law, anymore than plumbers or ophthalmologist are.  This kind of misinformation is intended to create the illusion that publishers’ business models are somehow favored by federal law and thus inviolate, but that is not true.  Only one group is afforded copyright protection and the term for which that protection lasts — authors (under section 201(a) of the copyright law, Title 17 of the U.S. code).  If publishers hold any rights, they hold those rights only because they are transferred to them by the authors whose works they publish.  And if those authors choose, they can transfer less than the full copyright, and for less than the full term of protection... As the ongoing boycott of Elsevier dramatically indicates, scholarly authors are becoming much more vocal and open as they demand a better solution for distributing their works... It is very important to some publishers that authors do not come to understand the power they have based on the fact that they hold all of the rights under copyright and can leverage those rights to do what is best for them. Statements like the one from Wiley Blackwell reflect, I think, an increasing sense of panic in the publishing community... When Oxford University Press tries to claim that essays written for edited volumes are “work made for hire,” they are grasping at a legal straw that cannot hold up for them.  Likewise when publishers like Elsevier and the American Chemical Society write publication contracts that try to make authors’ retention of rights, or not, dependent on the kinds of internal policies that exist on the authors’ university campuses...”