Public Domain -- Just Kidding!

A koan: How is a public domain article found behind a paywall?

March 28, 2018

Not long ago, our interlibrary loan manager pointed out that a journal article requested by two of our patrons was posted to an academic social site. Normally, she wouldn’t refer our patrons to an article posted online because authors often post things without regard to the fact they surrendered their legal right to do so. The most common practice is to give copyright to the publisher, which usually allows a version of the article to be shared online at some point. This doesn’t threaten publishers’ business because a relatively small proportion of authors bother to find an earlier version and dust it off and even if they do, it’s standard practice to consult the published version of record, though there’s likely little difference. A lot of our interlibrary loan traffic is securing the final version of a publicly-available preprint. This can cost us quite a lot of time and money, but it’s how things are done.

Anyway, she was startled to see that the publisher wanted $38 per copy for an article that clearly stated on its first page was in the public domain. It wasn’t copyrighted! But the version the publishers put out was. Sort of. The publisher “added value” (according to their website “such as formatting or copy editing”). Unless the authors of the article that was in the public domain paid the publishers of the journal $3,000, readers and libraries would have to pay for it.  

The work was produced by federal government employees, whose work is placed in the public domain. They wanted it to reach academic readers so they submitted it to an academic journal that is, like most academic journals now, owned by a for-profit multinational corporation. So publicly-funded research that had the privilege of being published in one of over 1,300 journals owned by this particular publisher is not accessible unless somebody pays, very often with more public dollars. Does this make sense?

A lot of sense, to publishers and their investors. The profit margins are fabulous!

I know that things in the public domain can be copied and sold by whoever wants to sell them. No rights are reserved, at least in the US, at least theoretically. (Twitter folks have been finding me some odd exceptions.) This is why having our government documents in the public domain is so valuable. People can build things out of them. Businesses use government information all the time. But the argument that public domain article can’t be shared without payment to a middleman kind of messed with my head and led me to write a heated Tweet. I hardly ever use ALL CAPS, but I did.

I wasn’t the only one who found it counter-intuitive, though why should I be surprised? This is business as usual. What the government employees did by surrendering all rights to a publisher was to get a patina of prestige, mostly conferred by the volunteer labor of reviewers and editorial board members. Copyediting is nice, but it’s the journal as a brand that is valuable. That’s why commercial publishers are snapping them up left and right. Still, there’s something discombobulating about seeing on the same page that it’s in the public domain and will cost $38.

If that rattles your cage, what’s far more troubling is that these same publishers are co-opting the movement to make research open access. They see the tide is turning, but it’s turning at a leisurely academic pace. They’re going to own open access, with the high costs transferred to authors and their funders, if we don’t change our ways.

Fortunately good people are trying to create change. I’ve tooted the horn for various efforts including Humanities Commons, the Open Library of Humanities, the Open Science Framework, Lever Press (liberal arts college libraries walking the walk) and the ambitious reworking of the relationships among scholarly societies, academics, and libraries drawn up by the imaginative engineers of the Open Access Network. I’m also pleased to see the ScholarlyHub project is moving along. I love the opening paragraph April Hathcock and and Guy Geltner wrote in their update.

In ecobiology, an ‘invasive plant species’ is one that takes over a natural habitat and competes with native species for food, air, water and other resources. The invasive species grows so fast that native species are no longer able to survive. At some point, native plants die out, leaving the invasive species to thrive in a monopoly over its new habitat. Scholarly communications is one such habitat in which we as researchers have allowed an invasive species – the private, for-profit academic publishing industry – to take over the resources we need and use to create and disseminate knowledge. With a revenue stream of nearly US$10 billion (and growing), private, for-profit academic publishing is threatening to choke out all other, smaller forms of knowledge creation and dissemination, leaving companies like Elsevier, Springer Nature, SAGE and Wiley as the sole plants in the scholarly communication garden. At ScholarlyHub, we are determined not to see that happen and are working to clear the garden, a little space at a time, to allow for research to continue to grow and thrive in its natural environment: the world of non-profit, researcher-owned and -operated scholarly communication.


It's a good article, and a serious warning of things to come. The bizarre and profitable turn academic publishing has taken is not tradition. It’s a rentier’s co-optation of academic tradition. We need to imagine new ways to share knowledge and (a harder task) new ways to fund it and (the hardest task of all) adopt new habits that choose making knowledge both freely and more equitably open over submitting to journals owned by mega-corporations. But we’d better do it quickly, before “open” becomes a wholly-owned subsidiary of Elsevier, Taylor & Francis, Springer Nature, SAGE and Wiley.  

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