BASIC OVERVIEW
Five publishers control more than 50% of all scientific publishing (ScienceDaily).
These publishers generally have had little to no role in either the funding or creation of the works that they publish, but they enjoy almost all the direct pecuniary rewards from their published material (Guardian). These works are guarded by TPMs online, and access is granted on a per-paper basis at exorbitant prices to the public (Guardian).
Publishers are also actively increasing subscription rates for libraries and educational institutions (ScienceDaily, Guardian). While a private researcher can resort to going to a library, ultimately, the library, if it is to have any claim to being a credible library (or higher educational institute, for that matter), will have to provide access to journals like Science and Nature. This fundamental price inelasticity of subscribers gives publishers inordinate bargaining power, and they have been putting it to good use (Guardian).
The basic business model of scientific publishing requires that they have inordinate bargaining power in their dealings with researchers who provide submissions as well. They need at root to own the IP, and it is in their interest to own it at minimal cost. Unsurprisingly, then, contracts with publishers are standard-form contracts presented on a take-it or leave-it basis which strip the researcher of most all IP rights in relation to the published version of the study (Guardian).
ISSUE
What is at stake here is access to knowledge and generation of new knowledge. The argument, that it is not knowledge itself but this specific instantiation of knowledge that these publishers have a copyright over, fails when one considers that this, scientific publishing, is the only form, forum, and method that society has chosen acceptable to test, verify, and disseminate new scientific knowledge for further testing and verification and eventual induction into the domain of what we consider to be true about the world. Restraint of access to these articles, then, is tantamount to restraint of the ability to verify that studies were soundly performed, and must of necessity hinder the scientific process, the enterprise of research, and the accurate induction of new assertions into the body of accepted facts we deem today to be true.
PURPOSE OF COPYRIGHT
It may be helpful to remind ourselves of the purpose of the Copyright Act as stated in Theberge, and later clarified in CCH and Alberta (Teachers) – seeking a balance between the public interest in a wide dissemination of works and obtaining a just reward for the copyright holder. It must be remembered that in every iteration of purpose, the SCC has always added the qualifier “just” – it follows then that unjust rewards fall outside the purview of the Copyright Act.
The locus of justice in copyright must reside not in pure procedure (as every penalty clause is qualified with the words “if it deems just”), but rather in distributive justice. The purpose of Parliament seeking just rewards for this type of activity — indeed, the very reason we attribute justice to the type of reward accrued to a proper copyright creator — is because such compensation encourages further such activity, and it is a type of activity we have deemed socially valuable and would like to encourage. Scientific research falls squarely into this ambit, and its ownership and use as a vehicle for rent-seeking by an entity to generate rewards that neither adds to the scientific process nor can be justified as costs of services rendered is an enterprise antithetical to the interests of the Copyright Act as stated in Theberge, CCH and Alberta (Teachers).
Rawls, in his conception of “justice as fairness,” stated that differential distribution is justified only to the point where no further marginal benefit accrues to society. The application of this principle of justice to the present situation would almost certainly result in a verdict that these rewards are unjust. Professor Dworkin of NYU Law has written extensively on his conception of distributive justice, defining justice as equal opportunity of access to resources. Nozick, from the other end of the political spectrum, stated as his premise “[t]he minimal state is the most extensive state that can be justified”. Frankfurt presented justice as sufficiency. Yet at root all agreed that justice is giving to each their due and no more, however that be interpreted. The purpose of copyright is to seek a balance between the public interest in dissemination and the just rewards of the copyright holder. When publishers can demand increasing rates while bearing no additional costs and can reliably expect the majority of subscribers to acquiesce, there is necessarily an imbalance in favour of copyright holders.
POTENTIAL REMEDIES
Whether fair dealing or the LAM protection applies to TPMs is a matter of statutory interpretation. The operative TPM section states “No person shall…” violate a TPM (s. 41.1(1), CA). This wording seems to indicate that this is a separate offence from the operative copyright section, and would indicate fair dealing is out of reach. Yet Parliament, through use of words like “work” and “copyright holder” in the definitions for both TPM and “circumvention”, impliedly asserts that the purpose of TPMs and the underlying activity sought to be guarded against by TPMs is copyright infringement (s. 41, CA). Fair dealing for enumerated purposes does not breach copyright (s. 29, CA). If the argument – that the text, context, and purpose of s. 41 suggests its ambit requires the underlying breach of the TPM also to be a breach of copyright, and not a fair dealing – can be sustained, then I believe that fair dealing can be brought in as a defence to s. 41.1(1) offences.
A judge has discretion in every instance to refuse to award more than statutory minimum (or, in the case of secondary infringement, a nil amount) if the court deems just.
Absent a reason for demand to drop, suppliers will continue to seek maximum profits and prices will inevitably rise for necessary subscribers. Only an overhaul of the Copyright Act, at the very least, with respect to scientific publishing, can, I believe, solve this issue.
WORKS CITED/FURTHER READING
Buryani, Stephen. “Is the staggeringly profitable business of scientific publishing bad for science?” The Guardian. 27 Jun 2017, 6:00 BST, https://www.theguardian.com/science/2017/jun/27/profitable-business-scientific-publishing-bad-for-science
Dworkin, Ronald. “What Is Equality? Part 2: Equality of Resources.” Philosophy & Public Affairs, vol. 10, no. 4, Wiley, 1981, pp. 283–345, http://www.jstor.org/stable/2265047.
Frankfurt, Harry. “Equality as a Moral Ideal.” Ethics, vol. 98, no. 1, University of Chicago Press, 1987, pp. 21–43, http://www.jstor.org/stable/2381290.
Lamont, Julian and Christi Favor, “Distributive Justice”, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), <https://plato.stanford.edu/archives/win2017/entries/justice-distributive/>.
Nozick, Robert. “Distributive Justice.” Anarchy, State, and Utopia, pp. 149-182, New York: Basic Books, 1974.
Rawls, John. A Theory of Justice, Harvard, MA: Harvard University Press, 1971.
Universite de Montreal. “Five companies control more than half of academic publishing.” ScienceDaily. ScienceDaily, 10 June 2015. <www.sciencedaily.com/releases/2015/06/150610143624.htm>.
Communications Law