A glimpse of our history
SPARC Open Access Newsletter, issue #78
October 2, 2004
by Peter Suber
Here are some excerpts from a 1974 _Science_ article and two subsequent letters to the editor.  I'll keep my own voice out until the end.  Thanks to Christopher Kelty, Assistant Professor of Anthropology at Rice University and co-founder of the open-access Connexions project, for unearthing these pieces and bringing them to my attention.

* John Walsh, "Journals:  Photocopying Is Not the Only Problem," _Science_, March 29, 1974, pp. 1274-1275, 1277.
[...] Attention has been focused on the photocopying issue by a suit brought by the Baltimore publisher of scientific and medical journals, Williams & Wilkins, charging the National Library of Medicine and the library of the National Institutes of Health with copyright infringement via photocopying.  The most recent round of court action favored the defendants, permitting them to continue photocopying. [...]

Reduced to its essentials, the dispute over photocopying casts scientific publishers and research libraries as the major antagonists.  The libraries want the right to continue to provide a single photocopy for a reader who requests it.  The limit on material is generally accepted to be a single article from a journal.  The publishers argue that the mass, mail-order photocopying by major research libraries deprives the journals of the revenue necessary to cover editorial and printing costs and, in the case of commercial publishers, return on investment.  They contend that if things go on this way there will be no journals to copy. [...]

Libraries, for their part, are experiencing severe strains on their general budgets from inflation and are beginning to rebel at soaring journal costs.  Some libraries have cut purchases of scientific books and monographs in order to keep up periodical purchases.  Others have conducted "use surveys" on technical periodicals and dropped the subscriptions on the least used.  Even larger and more affluent research libraries --mostly university and large metropolitan libraries-- are finding ways to share the burden imposed by increasing costs and greater numbers of scientific journals (one thing this means is a bigger photocopying network). [...]

[O]bservers say that a growing trend among both commercial and nonprofit publishers is toward obtaining an increasing portion of income from subscription rates levied on libraries.

Alarm over these trends in journal publishing are expressed fairly freely by librarians and some academics.  A recent public example was provided by a letter signed by 11 university chemists from six countries (the problem is international) published in the 10 December 1973 _Chemical and Engineering News_....Particular criticism was aimed at commercial publishers who were accused of taking advantage of the fact that libraries are a "captive audience" by setting high subscription prices on new journals.  [...]

In view of the importance of journals to the scientific enterprise, it is surprising that the cost crisis affecting journals and libraries has not prompted more efforts at corrective action.  The photocopying issue has claimed primary attention but other journal problems are enforcing the need for new answers to the old questions of who pays and how much.

* Curtis G. Benjamin, "Support for Williams & Wilkins," _Science_, June 28, 1974, pp. 1330-1331.  [A letter to the editor]
[Benjamin names some society publishers offering financial support to the plaintiffs in the Williams & Wilkins lawsuit.]  This evidence of professional society concern exposes an odd conflict of interest that needs to be pondered thoughtfully by all scientists.  While many individual scientists, along with many librarians and other information specialists, are pushing hard for exempted privileges of photocopying for scientific and educational uses, the officers of their professional organizations (and especially their publications officers) are drawing back from the sure prospect of resulting losses of subscription and advertising income to their already straitened journals.  And, strangely enough, many members of the societies that are supporting the Williams & Wilkins appeal are also supporting the National Education Assocation's Ad Hoc Committee of Educational Organizations and Institutions on Copyright Law Revision, a group that has made the loudest and most persistent demands for the broad special exemptions.

Scientists should not confuse the rhetoric of "free flow of information" with the economics of "flow of free information."  There is no such thing as free information; somebody has to pay the cost of any system for the organization and dissemination of science information.  The privilege of "free" photocopying simply is not compatible with the economics of book and journal publishing.  Why then, do so many scientists seem to think they can have their cake and eat it too?

* Ralph D. Tanz, "Copyright Laws," _Science_, August 30, 1974, p. 735.  [A letter to the editor]
Curtis G. Benjamin's letter (28 June, p. 1331) in support of Williams & Wilkins' Supreme Court suit against the U.S. government for copyright infringement omits some of the problems on the other side of the fence.  Just as publishing companies are faced with the financial squeeze attendant to inflation, so too are academic institutions.  While costs have risen, departmental budgets have fallen further and further behind, and now new demands are placed on us to pay for the dissemination of information to our students.  Publishers seem to be saying that if we are unable to pay, then our students have no right to receive information we deem necessary.

But let us examine this a little further.  Funds that made our research possible did not come from the publishers.  Nor did the publishers assist us in writing the manuscripts.  Indeed, they charge us for reprints, presumably make a profit selling their journals, and do not reimburse the authors for their efforts.  Thus, the author does the fund raising, the thinking, the laboratory work, and the writing, and then the publishers claim ownership, apparently because it may make money for them.  And to top it off, they now want us to pay for the privilege of using the articles we have published to teach our own students. 

I agree that the copyright laws should be revised, vesting ownership of an article either in the name(s) of the author(s) or the scientific society responsible for publication --but certainly not the publisher.

* A few comments

I'm reproducing these fragments primarily to note their uncanny similarities to the OA debates 30 years later.

One of my first thoughts was that 1974 wasn't *that* long ago, so of course there would be similarities.  (I was a grad student in 1974, for example, so it's roughly within the period of my own scholarly career.)  But let it sink in.  In 1974 there was no World Wide Web.  In 1974, there wasn't even a BITNET, JANET, or USENET.  If you date the internet to the adoption of TCP/IP, then there wasn't even an Internet.  There was no PubMed or PubMed Central.  Journal prices had only recently begun to rise faster than inflation.  Photocopying machines were not just a disruptive technology; they were the cutting-edge technology for copying and sharing information.

Williams & Wilkins v. The United States was decided against the publisher-plaintiffs in the U.S. Court of Claims in 1973.  Immediately after their defeat, the plaintiffs appealed to the Supreme Court, which upheld the lower court ruling in 1975.

The decision in the Court of Claims, 487 F.2d 1345 (1973)
http://fairuse.stanford.edu/primary_materials/cases/c487F2d1345.html

The decision in the Supreme Court, 420 U.S. 376, 95 S.Ct. 1344 (1975)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=420&page=376

Williams & Wilkins is still an important precedent in U.S. copyright law.  However, soon after the Supreme Court upheld the decision in favor of scientific photocopying, Congress enacted sweeping revisions of U.S. copyright law, lengthening copyright terms, abolishing the need to register or renew copyrights, and taking other steps that continue to hobble education and research.

The Copyright Act of 1976
http://www.title17.com/contentLegMat/legmat.html

Although the debate from 1974 eerily recapitulates some of the debates still raging today, there is at least one important dissimilarity to point out.  The contemporary debate is *not* about the boundaries of "fair use".  Open-access advocates do not argue that providing OA to copyrighted works is already permitted by fair use; on the contrary, they argue that OA to copyrighted works requires the copyright-holder's consent. 


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This is the SPARC Open Access Newsletter (ISSN 1546-7821), written by Peter Suber and published by SPARC.  The views I express in this newsletter are my own and do not necessarily reflect those of SPARC or other sponsors.

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