John Willinsky

John Willinsky is Khosla Family Professor Emeritus, Stanford University, and founder of the Public Knowledge Project, which develops Open Journal Systems (OJS) and other strategies to promote open access. His most recent book is the open access Copyright’s Broken Promise: How to Restore the Law’s Ability to Promote the Progress of Science (MIT Press, 2023).

How Copyright Can Fix Open Access: A Disruptive Remedy

This presentation will set out the basis for rectifying open access’ ongoing conundrum through copyright reform. It argues that copyright reform for scholarly publishing is decades overdue, especially compared to the many internet-era updates made for gaming, video, music, television, and telecommunications. Research publications constitute a different economic order of intellectual property than literary works, under which they are typically categorized in copyright law, and warrant the sort of legal recognition granted to music, drama, choreography, and other distinct categories of creative work.

The presentation further argues that there is broad consensus among scholarly publishing stakeholders that open access is best for the circulation of research, but that open access continues to suffer from decades of market failure through monopoly pricing as it slowly moves toward universal adoption. Copyright law’s proven remedy for market failure—statutory licensing—has already been successfully applied to the music industry and refined over time with broad institutional support. Music licensing also demonstrates how such systems can operate globally through frameworks supported by WIPO and WTO agreements.

To apply statutory licensing to scholarly publishing, the copyright system would first need to recognize “research publications” as a distinct category of work, with oversight involving researchers, librarians, and publishers. A statutory license could then require research publications to be open access while ensuring publishers are fairly compensated by research institutions and funders, with pricing determined through appropriate copyright boards or courts after hearing from relevant stakeholders. The presentation concludes by proposing that the process begin with a convening of stakeholders to initiate discussions toward meaningful copyright reform for research publishing.