The current system of scholarly publishing is the real infringement of academic freedom

Rick Anderson has a piece on “Open Access and Academic Freedom” at Inside Higher Ed arguing the open access policies being put into place by many research funders and some universities that require authors to make their work available under open licenses (most commonly Creative Commons’ CC-BY) are a violation of academic freedom and should be viewed with skepticism.

Here is the basic crux of his argument:

The meaningful right that the law provides the copyright holder is the exclusive (though limited) right to say how, whether, and by whom these things may be done with his work by others.

So the question is not whether I can, for example, republish or sell copies of my work under CC BY — of course I can. The question is whether I have any say in whether someone else republishes or sells copies of my work — and under CC BY, I don’t.

This is where it becomes clear that requiring authors to adopt CC BY has a bearing on academic freedom, if we assume that academic freedom includes the right to have some say as to how, where, whether, and by whom one’s work is published. This right is precisely what is lost under CC BY. To respond to the question “should authors be compelled to choose CC BY?” with the answer “authors have nothing to fear from CC BY” or “authors benefit from CC BY” is to avoid answering it. The question is not about whether CC BY does good things; the question is whether authors ought to have the right to choose something other than CC BY.

Although for reasons I outline below I disagree with Anderson’s conclusion that concerns about academic freedom should trump the push for greater access, the point bears some consideration, especially because he is far from the only one raising it.

But what actually is this “academic freedom” we are talking about?  I will admit that, even though I am a long-time academic, and have a general sense of what academic freedom is, when I first started hearing this complaint about open access mandates, I didn’t really understand what the term “academic freedom” actually means. And part of the problem is that there isn’t really a thing called “academic freedom”.

The Wikipedia definition pretty much captures the concept:

Academic freedom is the belief that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teach or communicate ideas or facts (including those that are inconvenient to external political groups or to authorities) without being targeted for repression, job loss, or imprisonment.

But this broad concept lacks a unified concrete reality. Anderson cites as his evidence that CC-BY mandates violate academic freedom the following passage from the widely-cited “1940 Statement of Principles on Academic Freedom and Tenure” from the American Association of University Professors:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

Note that while this document provides a definition of academic freedom that has been fairly widely accepted, it is not in any way legally binding nor, more importantly, does it reflect a universal consensus about what academic freedom is. Nonetheless, it’s hard not to get behind the general principle that academics should have the “freedom to publish”. However, it is by no means clear what this actually entails.

Virtually everything I have ever read about academic freedom starts with the importance of giving academics the freedom to express the results of their scholarship irrespective of their specific conclusions. We grant them tenure in large part to protect this freedom, and I know of no academic who would sanction their employer telling them that they can not publish something they wish to publish.

But imposing a requirement that academics employ a CC-BY license does not impose a restriction on the content of their publication, but rather imposes a limit on venues available for publication (and it’s important for open access supporters to acknowledge this – there exist journals today that would not accept papers that were available online elsewhere, with or without a CC-BY license). But I’m not sure this constitutes a limit on academic freedom?

Clearly some restrictions on venues would have the effect of restricting authors’ ability to communicate their work. If a university told its academics that they could only publish in venues that appeared exclusively in print, they would unambiguously limit their ability to communicate and we would not sanction it. But what if they required that all works be available online to facilitate assessment and access for students? This would also impose some limits on where they could publish, but, in the current online-heavy universe, this would not be a meaningful limit on the authors’ ability to communicate.

So it seems to me that we have to make a choice. Approach 1 would be to evaluate such conditions on a case by case basis to determine if the limitations placed on authors actually limit academic freedom.  Approach 2 would be to enshrine the principle that any conditions placed on how or where academics publish by universities and funders are unacceptable.

If we take the case-by-case approach, we have to ask if the specific requirement that authors make their work available under a CC-BY license constitutes an infringement of their freedom to communicate their work. It certainly imposes some limits on where they can publish, but, given the wide diversity of journals that don’t prohibit pre-prints, it’s hard to describe this as a significant infringement.

The second issue raised by Anderson, that by requiring CC-BY and thereby granting others the right to reuse and republish a work without author permission you are depriving authors of the right to control how their work is used. I am a bit sympathetic to this point of view. But in reality authors have actually already lost an element of this control, as the fair use component of copyright law grants others the right to use published works in certain ways without author permission (to write reviews of the work, for example), so it’s hard to see this as a major intrusion.

Which brings me to one of my main points. Anderson argues that the principle of “freedom to publish” should be sacrosanct. But it clearly is not. While scholars my have the theoretical ability to publish their work wherever they want to, in reality the hiring, promotion, tenure and funding policies of universities and funding agencies impose a major constraint on how and where academics publish. Scientists are expected to publish in certain journals, other academics are expected to publish books with certain publishers. Large parts of the academic enterprise are currently premised on restricting the freedom of academics to publish where and how they want. In comparison to these restrictions – which manifest themselves on a daily basis – the added imposition of requiring a CC-BY license seems insignificant.

Furthermore, one has to view the push for CC-BY licenses in a broader context in which they are part of an effort to alter the ecology of scholarly publishing so that authors are not judged by their publication in a narrow group of journals or with a narrow group of university presses. Thus I would argue that, viewed practically, the shift to CC-BY would actually promote academic freedom and the freedom of authors to publish how and where they want.

One could reasonably respond that it’s not my place to decide on behalf of other scholars what does and does not constitute an imposition of their academic freedom. Which brings us to approach 2, enshrining the principle that any conditions placed on how or where academics publish by universities and funders are unacceptable. If you hold this position then you will clearly view a mandatory CC-BY policy as an unacceptable imposition of academic freedom. But you would then also have to see the hiring, promotion, tenure and funding policies that push authors to certain venues as an even bigger betrayal of academic freedom. I am happy to completely embrace this point of view.

In the end, I didn’t find Anderson’s article as repugnant as many of my open access friends did. Academic freedom is important, and it should be defended. And the points he raised are interesting and important to consider. But I take exception with Anderson’s focus on the supposed negative effects of the use of a CC-BY license on academic freedom, when, if we are serious about defending academic freedom we should instead be looking at how the entire system of scholarly publishing limits it. Indeed, I have now been inspired by Anderson’s article to make academic freedom a major lynchpin of my future arguments in favor of fundamental reform of scholarly publishing.


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