Open Access, you paid for it why shouldn’t you have access to it?


Have you ever tried to access a research article to find it behind a paywall, with an access fee north of twenty dollars and a subscription process that felt like taking out a home mortgage?

Well, if so you are not alone. Much research in the United States is paid for by agencies such as the EPA, FDA, or other taxpayer funded agency, and so logically the fruits of the research should belong to the taxpayers, rather than a journal which requires taxpayers to pay an additional fee to access the information they paid for in the first place.

So…imagine my surprise when I found these four points against open access mandates for research funded by public dollars, published by the Center for Protecting Intellectual Property, from the Antonin Scalia Law School at George Mason Unversity.

  • Open-access mandates undercut publishers’ ability to invest in producing and distributing copyrighted works.
  • Open-access mandates contradict basic principles of copyright law.
  • Open-access mandates are the classic example of a solution in search of a problem: there is no evidence of a systemic market failure in scholarly publishing requiring a massive regulatory intervention.
  • Open-access mandates are based on untenable economic models.

You can read all the bullshit that Bhamati Viswanathan & Adam Mossoff wrote against open access mandates here:

Let me address each point in order.

The first point, “Open-access mandates undercut publishers’ ability to invest in producing and distributing copyrighted works.” Is inherently false because “copyrighted works” are such things as “forms of expression” such as books, plays, art, music, or even computer code. If it is copyrighted, then it is already by definition “commercial” with commercial copyright protections which are already well established in the market. As far as copyright protections for the results of publicly funded research, shouldn’t the investor which is the taxpayer, be the recipient of the output of the research they funded?

The second point, “open-access contradicts the basic principles of copyright law.” is similarly idiotic. Copyright is there to protect the intellectual property of an expression so that the owner of the IP can make a living without knockoff copies of “50 Shades of Gray” destroying the author and publisher’s ability to earn a living from the legitimate sales of that work. The purpose of research is to investigate science and move human progress forward, and in an academic setting to help churn out new Ph.Ds and help new professors earn tenure, which is something decidedly NOT a part of the basic principles of copyright law.

Reading through the entire (freely available briefing, rather ironic isn’t it?) this point “Publishers ensure that consumers of scholarly research receive high quality, well-supported, and professionally finished works.” was raised without irony, which lets me know that the authors are completely unaware of the ability for original published research to be replicated, nor are they giving the problems with “peer review” a fair shake. The problem with the closed publishing model is that bullshit gets published, and only a small segment of people read it, and as Linus Torvald’s pointed out “with enough eyes all problems become trivial.”

The third point, “Open-access mandates are the classic example of a solution in search of a problem: there is no evidence of a systemic market failure in scholarly publishing requiring a massive regulatory intervention.” is actually a funny argument. If it weren’t a problem, then people wouldn’t be asking for it, so saying it isn’t a problem is literally the logical fallacy of “begging the question.” The state of scientific publishing is crap, as the model has changed from “research, write, edit, publish” has become “research, write, edit, publish, react to public scrutiny” as meaningful feedback comes from people having access to your research (and the internet now makes that a global audience).

The fourth point, “Open-access mandates are based on untenable economic models.” is complete bullshit. Look at voluntary open source such as Linux. Linux has impacted the worlds economy for the better by allowing people to create tools to do meaningful work. Even look at the positive impact of non-open source private charity that works to increase access to educational resources. The economic impact of Andrew Carnegie creating libraries for people to attend, and learn, has given us (and love him or hate him, his mamma used a library card to create a brain surgeon) Ben Carson. Spreading knowledge is not an “untenable economic model” and the would be gatekeepers of knowledge are simply trying to use artificial scarcity to enrich their own pocket.

It should be noted that Bhamati Viswanathan & Adam Mossoff simply listed the lack of justifications in various laws mandating open access as their justification that the economic models were untenable. Once again this is a logical fallacy and intellectual laziness of the highest order, as they offer no evidence of negative economic impact at all to uphold their assessment that open access mandates are based on untenable economic models because no economic models were presented.  In other words, they created a bullshit word salad and tried to spin it off as an objective criticism.

Now, what you will NOT find here is me saying that a researcher cannot or should not PATENT the fruits of their research. The patent process is a great way for a researcher of new intellectual property to monetize and commercialize their discoveries. Whether those discoveries are new molecules, techniques, circuits, or computer functions through code. The copyright laws are there to protect the “expression” of the author, not create new industries or revolutionize existing industries. But patents expire, and they do so LONG before copyright does, so I don’t see how making me pay twenty dollars for an article on an aromatic ring opening sequence from the 1970s using the Stork enamine is defensible.

We live in a world where increased access to information is a driving force behind economic growth, from GNU to Linux to Raspberry Pi to Arduino to Scratch to the list goes on and on. In an era when US schools are raising drastically in cost without any rise in positive outcomes arguing for the continued impairment of access to educational resources already paid for by the US Taxpayers is morally indefensible and completely lacking in ethics.

Property owners should in fact have their property protected, and for researchers that is what the patent process is for, to monetize their discoveries. For the US taxpayer, the research can be thought of as a contractor, working to improve the property owned by the Republic. A contractor who adds on a sun room has no claim to the sun room, although if the contractor invented a new way of pouring concrete to build your sunroom, then they should patent it.


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