As a PhD student back in 2000-2005, I was excited about having completed my first publication cycle: finish the manuscript (with lots of help from my advisers), send it for review, get the reviews back, edit it, send it again and get an acceptance letter. A great feeling of accomplishment, that was only tarnished by my subsequent experience: the journal office sent me a "Copyright Transfer Agreement".
To the PhD student that I was, not versed in the intricacies of the academic publishing industry, the document was vague and emanated a scary tone. There was a law-related issue that had so far escaped me, and that had to be addressed promptly and unquestioningly, "or else". The document demanded that I make the product of my work, funded by the Spanish government (my fellowship and funds to my host lab in Barcelona) and the NSF (funds to Volker Hartenstein's lab in California, instrumental to make the paper a reality) a piece of property of the journal (Development, Genes and Evolution). The stated purpose was to, paraphrasing (I've long lost those emails), "grant the journal the ability to publish the work and to protect the work from unlawful use". Such wording implied that the journal could not publish our manuscript without the copyright transfer, and that on top of it there was something scary about the process that required that I comply for my own future interest.
In retrospect, I know that neither statement was true.
Around that time, I had read about the experiences of D. J. Bernstein in publishing, and how he signed all his manuscript copyright transfer agreements with "this work is in the public domain". He got quite a lot of push back, but ultimately succeeded. A work in the public domain can be printed and sold by the journal and that's that. Compelled by his arguments, which agreed with my impression that a license to publish does not necessarily need to be one that grants exclusive rights, I wrote back to the journal stating that the work was on the public domain. The journal wrote back an even stronger letter about how it was absolutely necessary that I transfer the copyright to them, along with further vague wording implying an "or else".
Feeling small and inexperienced, and crucially, seeing how everyone around me thought that the copyright transfer is normal and what has to be done, I complied. It didn't seem a battle worth going for. Note this was before the Public Library of Science (PLoS).
How wrong I was.
Of course, I was terrified at the prospect that my manuscript would not be published. Publications are the currency of academia, and I needed this manuscript to graduate.
It is only now, with the benefit of hindsight and after having learned about the ways of the publishing industry, that I developed an understanding of what happened. In brief, I think I was bullied into surrendering the copyright of our manuscript.
My first question today is whether I was even the truthful owner of the copyright of our manuscript, and therefore competent to authorize the copyright transfer. Our work being funded by public money, in public universities, and produced for the general interest, perhaps the role of copyright owner was delegated to us, the authors, but only on behalf of the tax payers, that is, the citizens of Spain and the USA.
The telling of my experiences above was spurred by a series of exchanges on Twitter, that I started by referring to Bjorn Brembs' blog post on "Sci-Hub as a necessary, effective civil disobedience", followed by a comment by my colleague Michael Nitabach on twitter:
<< People stealing shit because they don't want to pay for it isn't "civil disobedience". >>
Michael is right. Stealing is an unlawful act.
My story above provides some context as to why civil disobedience is one possible response to the current situation in academic publishing.
One form of disobedience, less overtly unlawful but just as unlawful, is the sharing of manuscripts via email. I do not know of a single academic that doesn't engage in such unlawful activity.
Another form, also widespread, is the posting of scientific manuscripts online, in the web pages of our labs. Posting and spreading copyrighted materials is unlawful. Google Scholar goes to the extent as to post links to such freely available PDFs next to the search results, facilitating their discovery and download on behalf of human beings seeking to read the copyrighted works.
Sci-Hub automated this process, and more. What the publishers object to, then, is not that academics break the law a little bit, but rather, that they break the law systematically. That is, that they threaten significantly their very lifeblood, the bulk of which is no other than public research funds being funneled to them via library subscriptions. By acknowledging that academics have to break the law to even be able to do their work, the publishers are accepting that the current situation does not serve the purposes of scientific research. Much less the purpose of keeping the general public informed.
A world in which the law was respected to the letter would be one in which we are not able to read most academic publications, or any publications (magazines, books, novels), because we or our institutions lack the funds to purchase them. This world, in which fair use would be banned, and where publications would be rented out for brief periods of time, and where private, individualized commercial access to publications is the norm, was described in a short science fiction dystopian story by Richard Stallman titled "The Right to Read". A scary thought.
In order to do research, we academics must be able to search and read published works. In order to be informed, any citizen, any human being for that matter, has the right to read research that was publicly sponsored. If in order to do our work as scientists we must break the law, then the law needs changing.
It does not help the cause of the publishers that they spend enormous sums of money lobbying the US congress to pass more restrictive laws, such as laws that ban the NIH from enforcing that all funded research is published with an open license that allows everyone to access and read the papers. The law can be changed--the publishers actively seek to do so--and therefore it can also be changed in the other direction, towards full access to all academic literature for everyone. But there isn't any obvious entity that can lobby on behalf of scientists. We scientists are not part of a cohesive, single-minded entity with surplus resources to advance a cause, and furthermore, we are weak because our main interest lays elsewhere, and the small ways in which publishers allow us to break the law suffice for our immediate purposes.
All we can do, in practice, is act in a way that expresses dissent. This is called civil disobedience. The critical aspect is that a sufficiently large number of actors have to engage in it, so that the new way becomes the de facto way, and hopefully, eventually the law of the land.
Or, as a Spanish speaker would put it: "¿Quién es Fuenteovejuna? Todo un pueblo señor."
To conclude by singling out a country, Iceland, that recently and pacifically overthrew its government for forgetting the best interest of its citizens. In front of the government building there is now a monument to civil disobedience: "The Black Cone, Monument to Civil Disobedience". It bears the following quote, extracted from the French Revolution's Declaration of the Rights of Man and of the Citizen:
<<When the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties.>>