Copywrongs in the Academic-Publishing Industrial Complex

Works of the United States government, including works prepared by its officers and employees, do not qualify for copyright protection. 17 U.S.C. § 105. Such works are in the “public domain,” and may be freely distributed. Works in the public domain thus include academic papers written by governmental scientists and published in proprietary academic journals. The journals cannot acquire a copyright in what was in the public domain ab initio.

And yet, proprietary journals routinely charge customers for works in the public domain. There appears to be no meaningful regulation of the academic publishing world, where publishers sometimes commandeer $60 or more per article, and charge yet again for access to supplementary data and materials. Charging fees such as these for what belongs to the public is worse than ludicrous; it’s piracy! See Ryan Merkley, “You Pay to Read Research You Fund. That’s Ludicrous,” Wired (April 18, 2016).

In an era when publishers complain and sue over unauthorized distribution of articles, it is remarkable that publishers are so cavalier about their own copywrongs. Paywall Watch is a website that has set its mission to call out proprietary academic publishers for improperly charging money to distribute articles that are in the public domain. See Dalmeet Singh Chawla, “Website Flags Wrongly Paywalled Papers,” The Scientist (May 31, 2017). From a casual review of the Paywall Watch website, there appear to be many offending instances of publisher piracy.

In addition to overt copywrongs, there is the more prevalent issue raised by publishers profiteering from selling papers based upon federally funded research. Federal regulations and Executive Orders direct federal agencies to ensure that taxpayers do not pay twice for federally funded research, even research conducted by non-governmental employees. SeeExpanding Public Access to the Results of Federally Funded Research,” (Feb. 22, 2013); Office of Science and Technology Policy, “Memorandum on Public Access” (2013). Despite President Obama’s support, powerful congressional patrons of the Academic-Publishing complex, from both sides of the aisle, have shilled for protectionist legislation. See Beware the Academic-Publishing Complex!” (Jan. 11, 2012) (discussing Congresswoman Carolyn Maloney’s efforts to press special interest legislation for Elsevier). Compliance with the federal open-access mandate is poor.

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A group of authors, led by scientists from Divisions of the National Institute for Occupational Safety and Health, in Cincinnati, Ohio, recently published an epidemiologic study of cancer outcomes in workers exposed to polychlorinated biphenyls (PCBs). Avima M. Ruder, Misty J. Hein, Nancy B. Hopf, and Martha A. Waters, “Cancer incidence among capacitor manufacturing workers exposed to polychlorinated biphenyls,” 60 Am. J. Indus. Med. 198 (2017) [cited below as Ruder]. The NIOSH authors published their study in the “Red Journal,” the American Journal of Industrial Medicine, edited by Steven B. Markowitz and Rodney Ehrlich, who are well-known in lawsuit industry circles.

Ruder’s article contained a clear disclaimer:

This article is a U.S. Government work and is in the public domain in the USA.”

Ruder’s publisher, John Wiley & Sons, blithely ignored the disclaimer and hid the article behind a paywall (at the relatively low, one-time price of $38.00, U.S.). And that is too bad because Ruder’s work has generally shown that there is not much to the claim that PCBs cause lung cancer, a claim that caused quite a stir in the United States Supreme Court, twenty years ago. See General Electric Co. v. Joiner, 522 U.S. 136 (1997). Ruder and colleagues found a slightly raised incidence of lung cancer, risk ratio 1.16, but they readily acknowledged that without smoking history data, this small risk could not be interpreted causally. Ruder at 205 (2017); see also Avima M. Ruder, Misty J. Hein, Nancy B. Hopf, and Martha A. Waters, “Mortality among 24,865 workers exposed to polychlorinated biphenyls (PCBs) in three electrical capacitor manufacturing plants: A ten-year update,”217 Internat’l J. Hyg. & Envt’l Health 176 (2014). In a previous analysis of lung cancer mortality in the full cohort, the elevation had disappeared when short-term workers (fewer than 90 days on the job) were removed from the analysis. The long-term workers, with obviously much greater potential for cumulative and peak exposures, showed a lung cancer standardized mortality ratio of 0.99, ever so slightly less lung cancer than expected among non-exposed workers. Ruder at 205. See “How Have Important Rule 702 Holdings Held Up With Time?” (Mar. 20, 2015); The Joiner Finale.”

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