Legal discussions evolve with industry changes

At the close of 2012, there was cautious optimism that the BRIC countries (Brazil, Russia, India and China) will continue to function as the engine of the global economy for 2013. Meanwhile, the USA and EU appear to have bottomed out and may overcome the budgetary, financial and banking crises beyond the US ‘fiscal cliff’ and a still-to-be worked out rescue package for Greece.

With Germany and Italy undergoing elections, there is certainly enough uncertainty in the mix in Europe – but nevertheless, barring a deep energy crisis or a prolonged armed conflict, the world economy should steady and begin to slowly improve from the 2008 lows.

These trends are likely to be reflected in the scholarly publishing industry. The predictions and observations of EBSCO’s journal price report 2013 are broadly in line with this, suggesting flat library and institutional budgets, as well as moderate price increases from publishers.[1]

Current landscape

User/reader-pays (subscriptions, document delivery, lending) still remains the predominant model, with tailor-made solutions for access and mitigating cost increases through innovative solutions (such as 24-hour display-access, e-lending and sponsored or co-funded document delivery).

Author or funder-pays business models have gained traction over the past 10 years in the journal market, but governmental and funding policies may yet determine their sustainability. A significant proportion of journal articles published in peer-reviewed journals are made available open access (OA) today. The year 2013 could see a new equilibrium between green and gold OA. It could also be a defining moment for the concept of ‘the author’ and his or her freedom to determine if, when, how and what to publish.

Hybrid (subscription/OA model) options are now offered by almost all of the top-tier science, technology, and medical (STM) publishers through an OA platform or an OA option within certain subscription journals. This offering is likely to continue throughout 2013.

In terms of technology, it is clear that apps, tools and software for text and data mining, ‘cloud’ computing and remote and mobile access are increasing in adoption and usage, as well as more federated and personalised discovery tools.

Legal discussions

As scholarly content and the way it is delivered evolves, there continue to be new legal matters to consider and address.

Copyright reforms still abound in all quarters of the globe. These include the announcement of a new WIPO exceptions treaty to be agreed in Marrakech, Morocco, mid-year. National copyright reforms are also going on or expected in Australia, Brazil, China, the EU, France, Germany, the UK and, perhaps, also in the USA. Key topics for discussion are how to deal with pre-internet works that need to be digitised as part of cultural heritage, updating exceptions to the digital age without undermining markets for digital works, and enabling more effective licensing through platforms and collective means.

Outside the area of copyright, the prevention of bribery and compliance, including subscription fraud, illicit access and leakage from publishing, intermediary and retail platforms are key topics that publishing houses will need to address in their contracts and ongoing business relationships.

A third topic in some countries is tax. There are discussions about extending preferential VAT rates for print and paper copyright-protected content to its electronic counterpart (audio-books, e-books, e-journals), as well as new definitions for withholding tax on royalties.

Social and cultural trends

The way that publications are accessed, and how they are shared, is also undergoing radical changes through social web tools and applications. It remains to be seen which of these are hype and/or over-promise, and which will realistically become part of the mainstream by improving productivity – and, ultimately, the progress of scientific discovery.

Another cultural trend to watch is the bargain to be struck between the journal, as the traditional custodian of the version of record of a scientific article, the author(s), the funders and the researchers/users who all seek to control a right to adapt, tweak, remix and change for their purpose (commercial or not) what’s in the record. A new social contract between these stakeholders in the scholarly community is needed to redefine who keeps the minutes of science, who preserves them – and, in the end, who defines what the fruits of scientific discovery are.

Licensing implications

Licensing agreements will have to change in line with industry trends. Developments in licensing will include the hammering-out of readily-discoverable and easy-to-understand terms and conditions for OA publications. Too many of the publications available as OA (gold or green) remain subject to unclear, hard-to-find or hard-to-read user rights. A consensus will also have to emerge in the scholarly community as to what terms and conditions come with paid-for gold OA publications. Will it be CC-BY, with an implicit right to remix, tweak and change scientific statements?

Other licensing terms will seek to marry or build a bridge between different business models. This might be, for example, how to transition from a pure subscription to a hybrid, or from a hybrid to a full OA journal, depending on events. Print-on-demand for the long tail of books will be on offer, as will ‘big deals’ for e-book programmes and e-book rental schemes.

There will also be a live-and-let-live approach with intermediaries, the ‘frenemies’ that are Google, Amazon, Facebook and Apple. Finally, licensing contracts will define and add new rights in connection with new tools and technologies.

Matt McKay is director of communications at STM, and Carlo Scollo Lavizzari is the organisation’s outside legal counsel