My Observer column about the academic publishing racket has caused a bit of a stir, which is gratifying. Cory Doctorow gave it a great boost by picking it up in Boing Boing. And then, in typical Cory fashion, he added this intriguing sting in the tail, raising a question that had never occurred to me.

Here’s an interesting wrinkle I’ve encountered in a few places. Many scholars sign work-made-for-hire deals with the universities that employ them. That means that the copyright for the work they produce on the job is vested with their employers — the universities — and not the scholars themselves. Yet these scholars routinely enter into publishing contracts with the big journals in which they assign the copyright — which isn’t theirs to bargain with — to the journals. This means that in a large plurality of cases, the big journals are in violation of the universities’ copyright. Technically, the universities could sue the journals for titanic fortunes. Thanks to the “strict liability” standard in copyright, the fact that the journals believed that they had secured the copyright from the correct party is not an effective defense, though technically the journals could try to recoup from the scholars, who by and large don’t have a net worth approaching one percent of the liability the publishers face.

Of course, to pursue this line, you’d have to confront the fact that academics are sharecroppers to their employers, and that the works they’ve published, posted to their websites, licensed for anthologies, etc, aren’t theirs, which would have a lot of fallout beyond mere academic publishing circles. But it’s still provocative to consider the possibility that the journals (and their enormous, conglomerated parent companies) might owe something like 40 years’ worth of the entire planet’s GDP to a bunch of cash-strapped universities.

Gosh! It’d be interesting to see what academic employment contracts say about this nowadays.

The BoingBoing post attracted a lot of good comments, including this from Steve Runge:

The fact that academics don’t know what the library pays for journal subscriptions is well-known by librarians. In fact, that’s the basis for shifting the burden of payment to the author/funder, to avoid precisely that moral hazard. Believe me, librarians are working their kiesters off to make OA easier for the laziest of the lazy. It just takes a while to get everyone rowing at the same time and in the same direction. The trouble spots: 1. every journal has a different policy regarding copyright. If we’re going to help lazybones professors put their pre-prints in publicly available electronic repositories, we’ll need either a) unambiguous language inserted forcibly into all publishing contracts giving universities first rights or b) a whonking big updated database of publishers’ contract language regarding repositories. 2. Prof’s don’t know, for the most part, how close this system is to collapse, and just how thoroughly publishers have libraries over a barrel. 3. Tenure and promotion review policies that are based almost exclusively on impact factor are basically a sop to Elsevier and other big publishers. If T & P review policies were also to include download counts of repository articles or other measures of dissemination & influence, tenure-track publishing behavior would broaden into open access.