Copyright’s Broken Promise
That Congress shall have Power . . . to promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries.
—U.S. Const. art. I, § 8, cl. 8
The case that this book makes for reforming US copyright law so that
it supports universal open access to research publications has five parts:
1. Scholarly publishing’s principal stakeholders (including the big pub-
lishers) are now in agreement that “open access” to research publications
will do more to promote scientific progress than the subscription journal
system of the print era.
2. This open access consensus is not well served by a Copyright Act that
encourages restricting, rather than opening, access to research, which
means that the law falls short of its original intent “to promote the Prog-
ress of Science.”
3. Rather than reform the act, stakeholders have pursued legal and extra-
legal work-arounds—with embargoes, final drafts, illegal copies, Creative
Commons (CC) licenses—that are failing to deliver universal open access
with all due speed and at a fair price.
4. So why not legislate statutory licensing (long used with music copy-
right) for research publications in which research’s institutional users and
funders are required to fairly compensate scholarly publishers for imme-
diate open access?
5. Such a legislative fix is not too much to request of a Congress that has
enacted nearly sixty digital-era reforms of the Copyright Act for every-
thing but science, with some reforms working internationally, which is
the goal of this initiative.
Copyright’s Broken Promise
How to Restore the Law’s Ability to
Promote the Progress of Science
John Willinsky
The MIT Press
Cambridge, Massachusetts
London, England
© 2023 Massachusetts Institute of Technology
This work is subject to a Creative Commons CC BY-NC-ND license.
Subject to such license, all rights are reserved.
The MIT Press would like to thank the anonymous peer reviewers who provided
comments on drafts of this book. The generous work of academic experts is essential for
establishing the authority and quality of our publications. We acknowledge with gratitude
the contributions of these otherwise uncredited readers.
This book was set in Sabon by Scribe Inc. Printed and bound in the United States of
America.
Library of Congress Cataloging-in-Publication Data
Names: Willinsky, John, 1950– author.
Title: Copyright’s broken promise : how the law now impedes the “progress of science”
and how it can be fixed / John Willinsky.
Description: Cambridge, Massachusetts : Massachusetts Institute of Technology, [2023] |
Includes bibliographical references and index. | Summary: “How US Copyright law
should be reformed to ensure open access to research and scholarship”—Provided by
publisher.
Identifiers: LCCN 2022003112 (print) | LCCN 2022003113 (ebook) | ISBN 9780262544412
(paperback) | ISBN 9780262371476 (epub) | ISBN 9780262371483 (pdf)
Subjects: LCSH: Copyright—United States. | Open access publishing.
Classification: LCC KF2994 .W55 2023 (print) | LCC KF2994 (ebook) | DDC
346.7304/82—dc23/eng/20220801
LC record available at https://lccn.loc.gov/2022003112
LC ebook record available at https://lccn.loc.gov/2022003113
10
9
8
7
6
5
4
3
2
1