The Desirability of Open Access as a Means of Publication and Dissemination of Information: Time to Recast the Relationship Between Commercial Publishers and Authors?

• Author: Nikos Koutras
• Position: PhD candidate, Macquarie Law School
• Pages: 85-100

THE DESIRABILITY OF OPEN ACCESS AS A MEANS

OF PUBLICATION AND DISSEMINATION OF

INFORMATION: TIME TO RECAST THE

RELATIONSHIP BETWEEN COMMERCIAL

PUBLISHERS AND AUTHORS?

NIKOS KOUTRAS*

CONTENTS

I

Introduction ..................................................................................................

85

II

The Concept of Intellectual Property Rights ............................................

87

III

Publishers’ Response in Terms of Open Access ......................................

91

IV

Justifications for Open Access Publishing ................................................

97

V

Conclusion ....................................................................................................

99

I INTRODUCTION

Intellectual property law directly and indirectly affects the rights and

obligations of individuals, families, enterprises and small groups of people. In

addition, it supports citizens’ creative endeavours. The core defining feature of

the digital age is ongoing technological growth, which brings about new types

of property with regard to the creative and intellectual endeavours of authors or

creators, composers and artists. For instance, anyone who has Internet access

can become a creator and publisher by creating a YouTube video or uploading

a post on Facebook. This enables authors or creators to reach larger audiences,

as the information ‘travels’ faster and thus can be widely disseminated.

Evidently, authors’ and publishers’ interests are associated with these creations;

therefore, the relationships between creative actors, publishers and intellectual

property regimes in the digital age need to be re-examined.

In this paper, it is argued that since the modes of publishing and content

have changed in the digital age, older copyright laws cannot protect authors’

creativity or publishers’ commercial rights. Open access can be an effective

response to the challenges generated by ongoing technological developments.

* PhD candidate, Macquarie Law School.

86

The University of Western Australia Law Review

vol 41(2)

To comprehend the desirability of open access as an instrument of the

publication and distribution of information, it is necessary to analyse the

background of the contemporary debate. Thus, in this paper, I analyse the

interconnections between commercial publishers’ interests and authors’

interests, and I argue that open access can benefit both. The two aspects of my

argument address: i) the necessity of protecting commercial publishers’

interests in the changed world of digital publishing and the Internet; and ii) the

possibility of reconfiguring the relationship between commercial publishers

and authors. I argue that in the context of continuous technological growth,

open access—as an alternative instrument for the protection of intellectual

property—can facilitate modern or digital publishing, and can be beneficial for

both commercial publishers and authors.

Contemporary copyright laws are not equipped to deal with the changed

realities of digital publishing. Arguably, digital publishing makes it easier for

anyone to publish, but as commercial publishing is still useful, it needs to be

protected. However, the relationship between commercial publishers and

academics needs to change. Authors, especially in academia, are the producers

of knowledge. Although commercial publishers are ‘gatekeepers’ of these

standards, under contemporary laws they receive almost all of the profits. Thus,

while they rely on academics’ expertise, they do not pay appropriately for the

expertise. At the same time, academia needs the professional gatekeepers of

standards—a function that is performed well by commercial publishers.

This paper is divided into four sections that discuss the following issues.

The first section discusses the theoretical background of intellectual property

rights (IPRs) through definitions and relevant theories. The second section

discusses the ethics of publication, including major ethical principles of

publishing and factors that promote ethical attitudes or cause problems for the

interplay between authors’ and publishers’ competing interests. The third

section considers the status of the relationship between authors and publishers

in the digital age. For instance, is this relationship beneficial for both? Can it be

beneficial on equal terms? If yes, what are the necessary conditions for the equal

protection of authors’ and publishers’ interests? The last section introduces the

concept of open access as a new mode of publishing to regulate authors’ and

publishers’ interests. It is proposed as a means to benefit this relationship in the

digital age.