Last Week in Tech Policy #43: The Educational Materials Copyright Debate

(By Lindsay Bombalski, PhD, Colorado Law 2L)

For those not involved in the publication of scientific papers, it may come as a surprise that once a new scientific finding is published in a scientific journal it often becomes the intellectual property of that journal. Access to the article describing the finding is usually available in three ways:

  1. By purchasing an individual or institutional license through the journal;
  2. Purchasing individual articles after reading the abstract through various search engines; or
  3. Finding the article in a version of the publication that is open-access.

Individual licenses often run around $500/annually for access to up to 250 articles in up to 25 journals with the purchase of a scientific membership—for example, though the American Chemical Society. Institutional agreements can run as high as $25,000 per journal. Alternatively, individual articles can be purchased for $32-$60.

For a student researcher at a university that does not receive funding for journal subscriptions, this means a paper with a reference list of 30 citations from the same journal could require on the order of $600 in subscriptions or $960 in individual payments in order to pass a peer-reviewer in the examination prior to publication. For real articles, the cost can be even higher because many more articles need to be accessed to develop the science in a new article. These figures make clear that the cost of scientific literature research—on top of the cost of materials, chemicals, equipment, and measurements devices makes scientific research—can be out of reach.

A new web site called Sci-Hub was created to lower the cost of educational scientific materials. Sci-Hub, in turn, has raised significant debate about open access to scientific materials and related intellectual property issues.

Created by a Kazakhstanian computer engineer and neuroscientist, Alexandra Elbakyan, in 2011, Sci-Hub, hosted in St. Petersburg, Russia, provides access to many scientific journals for free. The site was temporarily taken down in response to an 2015 injunction by a large academic publisher but access is still open to 58 million academic papers and articles.

To use Sci-Hub, a user simply pastes a link to a  journal article in the search field and enter a code proving he or she is not a robot; the full-text article then appears for printing. (Prior to the injunction, Sci-Hub enabled searching by author name, a feature now disabled.)

The Evolution of Scientific Publications

Philosophical Transactions of the Royal Society, one of the earliest research journals, was created in the 17th century. At that time, the act of publishing academic inquiry was controversial and widely ridiculed. It was not at all unusual for a new discovery to be announced as an anagram, reserving priority for the discoverer, but indecipherable for anyone not in on the secret: both Isaac Newton and Leibniz used this approach.

However, this method did not work well. Robert K. Merton, a sociologist, found that 92% of cases of simultaneous discovery in the 17th century ended in dispute. The number of disputes dropped to 72% in the 18th century, 59% by the latter half of the 19th century, and 33% by the first half of the 20th century.†

The decline in contested claims for priority in research discoveries can be credited to the increasing acceptance of the publication of papers in modern academic journals where articles are reviewed by peers with full access to all journals, and manuscripts are rejected until the content reflects the current state-of-the-art and relevant references given by such peers. Peer reviewers, generally university professors, are paid fees in the hundreds of dollars for their input.

Commercial publishers began in the 1960s to selectively acquire higher journals previously published by nonprofit academic societies. Because of the inelastic demand for these journals, commercial publishers lost little of the market when they raised the prices significantly. Although there are over 2,000 publishers, as of 2013, five for-profit companies—Reed Elsevier, Springer Science+Business Media, Wiley-Blackwell, Taylor & Francis, and Sage—accounted for 50% of articles published.

Publication Systems and Copyright

Academic publishers argue that because they take copyright in scientific articles and cover peer-view and publication costs, charging for access justified. Scholarly publishing is a complex and costly process, and when a group of researchers submit a publication, they gain financial support for further research and improve accuracy with peer review.

Accordingly, publishers argue that Sci-Hub is illegal under international copyright law and the Computer Fraud and Abuse Act. Sci-Hub’s activity, they argue, endangers the sustainability of all scholarly publications, including articles, reference books, textbooks, and databases and all forms of content. Smaller publishers, university presses, and non-profit societies have all had their articles—and even entire journals and books—republished.

Publication Systems and Fairness

Unlike most publishers, academic publishers receive the two most important inputs to their business—articles and peer review—for little or no cost. While publishers argue that they add value to the publishing process through support to peer review groups, typesetting, printing, and web publishing, investment analysts, have been skeptical. A 2005 Deutsche Bank analysis stated that “we believe the publisher adds relatively little value to the publishing process . . . . We are simply observing that if the process really were as complex, costly and value-added as the publishers’ protest that it is, 40% margins wouldn’t be available.” Indeed, access to scientific articles costs $32-$60 per article, regardless of length, the peer review required, or popularity.

Many have perceived a crisis in academic publishing stemming from the combined pressure of budget cuts at universities and increased costs for journals. The university budget cuts have reduced library budgets and reduced subsidies to university-affiliated publishers. The humanities have been particularly affected by the pressure on university publishers, which are less able to publish monographs when libraries can’t afford to purchase them. For example, the ARL found that in “1986, libraries spent 44% of their budgets on books compared with 56% on journals; twelve years later, the ratio had skewed to 28% and 72%.” Elsevier, the publisher suing the creator of Sci-hub, earned approximately $1.58 billion in profit on $9.36 billion in revenue in 2015.

In the book Open Access, Peter Suber observed:

In 2008, Harvard subscribed to 98,900 serials and Yale to 73,900. The best-funded research library in India, at the Indian Institute of Science, subscribed to 10,600. Several sub-Saharan African university libraries subscribed to zero, offering their patrons access to no conventional journals except those donated by publishers.

Even wealthy institutions are fighting the publishing fees. Harvard, for example, has disavowed fee-based journals, pressuring its faculty in April 2012 to make their research open access and resign from commercial publications. It also said it could no longer afford the nearly $3.5 million it paid annually at the time for access fees. Cornell has followed a similar track, cancelling its Elsevier subscriptions nearly 12 years ago.

Elbakyan, Sci-Hub’s creator, released data over a 6-month period for article requests. Over those six months, 28 million documents provided to three million unique IP addresses from every continent except Antarctica—a number that could significantly under-represent total downloads because thousands of university users can share a single IP address on campus. By the end of February 2016, Sci-Hub was seeing more than 200,000 requests per day. The majority came from developing countries outside the United States and EU—more than 2.6 million from Iran, 3.4 million from India, and 4.4 million from China. The busiest city was Tehran, with 1.27 million requests, although, Elbakyan told Science that “[m]uch of that is from Iranians using programs to automatically download huge swaths of Sci-Hub’s papers to make a local mirror of the site.” The US is the fifth largest downloader.

Remaining Question

Sci-Hub stated in a 2015 letter that it receive complaints only from publishers and not from authors or researchers. If the academic community favors Sci-Hub, and academics use it, why don’t authors just submit publications to Sci-Hub directly?

One possibility is that Sci-Hub does not have peer review, which arguably governs a publishers’ reputation. What are the consequences of losing peer review, and are there new models for peer review in open access publications?

Are there legal ways to address the publishers’ escalation in pricing? Antitrust and consumer protection laws are possibilities.

An excellent review of the current issues and ideas for possible transformation of the system can be found here.

A full list of court documents on from the 2015 case with Sci-Hub is available here.

†See Jinha, A. E. (2010). “Article 50 million: An estimate of the number of scholarly articles in existence”. Learned Publishing 23 (3): 258–263. doi:10.1087/20100308. Archived from the original on 2012-05-23