
Prof. John Willinsky offers a compelling examination of the current landscape of academic publishing and its connection to open access (OA) principles in his book “Copyright's Broken Promise”. He advocates for a significant change in how open access is perceived, particularly suggesting a legislative requirement that mandates all publicly funded research to be published in open access. Additionally, Prof. Willinsky proposes establishing a statutory licensing system to ensure authors receive appropriate compensation. Through its six chapters, the book delves into the complexities of copyright law, the evolving scholarly publishing market, and the economic dynamics involved. His work serves as both a call to action and a framework for reshaping the accessibility and financing of academic research, questioning current approaches and proposing creative alternatives for achieving greater equality in society.
Historical Context and Critique
In the initial chapters, Prof. Willinsky offers a detailed historical perspective on copyright law. He traces its beginnings to a system encouraging creativity while benefiting the public domain. The core concept was to grant creators exclusive rights for a limited time, after which their works would become freely available, enhancing the collective knowledge base. However, Prof. Willinsky contends that the recent extensions of copyright terms and the broadening of rights have strayed far from this original purpose. This has led to a structure that often limits access to scholarly research, which contradicts the public good copyright intended to serve. His critique is rooted in the observation that the increased duration of copyright protection has often resulted in extended control by commercial publishers. This dominance enables publishers to charge high subscription fees and enforce restrictive access policies, creating obstacles to obtaining academic research. The author emphasises how these practices have compromised the public benefit that copyright law was originally designed to uphold. By exploring the development of copyright protections, Prof. Willinsky demonstrates how commercial interests have begun to overshadow the goal of promoting public access to knowledge.
Systemic Issues in Scholarly Publishing
Prof. Willinsky offers a thorough examination of the existing academic publishing model, pointing out several systemic challenges. A key aspect of his critique is the rising cost of accessing scholarly materials. Subscription costs and article processing charges (APCs) have skyrocketed in recent years, putting a financial strain on libraries and research institutes. Prof. Willinsky, for example, notes a significant increase in the cost of subscriptions by Taylor & Francis publications. This trend illustrates a wider problem in academic publishing, where commercial interests inflate costs, thereby restricting access to vital research. The lack of clarity in pricing models within academic publishing further complicates these challenges.
Prof. Willinsky explains how libraries and institutions find it difficult to negotiate fair terms due to the opacity of subscription agreements. The situation with Elsevier subscription prices is especially noteworthy since libraries confront high charges that limit their ability to provide access to critical research materials. This lack of transparency affects institutions and researchers who confront barriers when trying to get critical information.
The shortcomings of the current system also have an impact on authors. He notes that while publishing expenses are typically paid for by institutional grants or other indirect sources, authors frequently do not receive direct monetary remuneration for their efforts. Authors are discouraged from publishing in open-access formats and have less control over how their work is shared due to the cost of expensive APCs for open-access journals.
Proposals for Reform
In response to these challenges, Prof. Willinsky suggests several reforms to better align copyright law with the needs of scholarly publishing. He recommends establishing a licensing collective, creating a new legal category for research articles, and enacting laws governing licensing.
He also recommends including a crucial element that involves the implementation of statutory licensing for research publications. This approach would automatically include research works under a licensing framework, with standardised fees collected from libraries, research funders, or other stakeholders. Publishers and authors would then get these payments in accordance with the frequency of use of their works. He draws a comparison between this and the music industry, where statutory licensing structures have successfully struck a balance between the public and creative interests. He hopes to address the exorbitant prices of subscriptions and article processing charges (APCs) in academic publishing by introducing a model akin to this, extending the accessibility of research for both institutions and independent researchers.
Another important proposal is the creation of a new legal category for research publications within copyright law. This category would acknowledge the unique aspects of scholarly work and adjust copyright provisions to better support the academic community. According to Prof. Willinsky, the current copyright categories fall short of meeting the distinct requirements of research publications, namely their reliance on public financing and requirement for broad distribution. He intends to eliminate these obstacles and give researchers and institutions greater encouragement by creating a new legal category.
Prof. Willinsky also supports the creation of a Licensing Collective, similar to the collective management organisations found in the music industry. This collective would oversee the distribution of funds among publishers based on actual usage data. The goal of the Licensing Collective would be to promote a diverse array of publishers, curb monopolistic practices, and encourage competition within the scholarly publishing field. By including publishers of all sizes and welcoming new entrants to the market, the collective would help ensure fair compensation and stimulate innovation in scholarly publishing.
In addition to this debate, a study conducted by the Indian Institute of Management (IIM) Ahmedabad, the Indian Maritime University, and Berhampur University emphasises the significant financial burden faced by researchers in low-income countries such as India. In 2020, Indian researchers paid approximately USD 17 million in article processing costs (APCs) for open access (OA) publications, with large commercial publishers such as MDPI, Springer Nature, and Elsevier receiving more than 80% of the funds. This underscores the budgetary limitations of APCs, particularly for researchers in developing nations. The overall investment on APCs, which totaled USD 30 million, was centered in areas such as health and medical sciences (USD 7 million), life and earth sciences (USD 6.9 million), and chemistry and materials science ($4.8 million). In contrast, the humanities and social sciences received far less funding, with only USD 53,000 and USD 311,000, respectively.
In addition, 93% of multidisciplinary journals and 86% of chemistry and materials science journals required an APC. In the multidisciplinary field, 70% of the APCs were between USD 1,500 and 2,000, with a substantial proportion reaching USD 4,000. India spends roughly 15 billion rupees, or about $200 million, every year for access to academic journals. This expenditure is spread across the country's numerous research and educational institutes. To put it into context, this amount is comparable to the financial assistance granted by France to support India's COVID-19 response.
Implementation Challenges
Although Prof. Willinsky’s ideas are forward-thinking, they encounter considerable implementation hurdles. Shifting to a new system would involve intricate financial and logistical challenges. It would be vital to integrate existing systems like CrossRef and COUNTER, which track publications and citations, to manage the statutory licensing model effectively. These systems offer crucial data on usage and citation metrics, which are necessary for determining fair compensation and ensuring the accurate distribution of funds.
The vast scale of academic publishing introduces additional challenges. Prof. Willinsky recognises that moving to a new model would necessitate tackling financial, logistical, and regulatory issues on a large scale. Effective collaboration among stakeholders, including publishers, institutions, libraries, and policymakers, would be key to a smooth transition. Successfully navigating these complexities will be essential for bringing Prof. Willinsky’s proposals to fruition.
Vision for the Future
Despite these challenges, Prof. Willinsky’s vision for the future of scholarly publishing is both inspiring and achievable. He champions universal open access, aiming to eliminate financial barriers so that all research publications are freely available to the public. This vision seeks to enhance academic freedom by enabling researchers to publish in influential venues without the stress of associated costs. Additionally, it strives to foster a more inclusive and equitable research environment by making knowledge accessible to everyone.
Professor Willinsky's proposals for statutory licensing and a Licensing Collective offer realistic solutions to the issues raised by recent events. The COVID-19 pandemic underlined the importance of open research in addressing global health crises and other critical concerns. It exposed the shortcomings of the current system, as many researchers and institutions encountered significant obstacles in accessing essential information. By creating a legal framework for reasonable pricing and access, easing the financial burden on researchers and libraries, and improving access to essential research materials, Prof. Willinsky's recommendations may be able to assist address these issues.
Conclusion
Copyright's Broken Promise is an important scholarly publication that critically explores the current situation of copyright law and its implications for scholarly publishing. Prof. Willinsky provides a thorough and insightful study, diving into structural flaws in the academic publishing sector and proposing new reforms to address them. His ideas for statutory licensing, a new legal category for research publications, and a Licensing Collective are significant steps toward aligning copyright law with the needs of the academic community.
This book is an essential resource for anyone engaged in copyright law, scholarly publishing, or academic research. It emphasises the pressing need for reform and outlines a path toward a more fair and accessible publishing landscape. As the academic community continues to face these challenges, Prof. Willinsky’s insights serve as a roadmap for driving meaningful change and creating a research environment that benefits both creators and the public. The real-world examples included highlight the practical consequences of these reforms and reinforce the necessity for a more balanced and transparent system.
IP Round-up

News Corp Sues AI Startup Perplexity Over Copyright Theft: News Corp's Dow Jones & Co., publisher of the Wall Street Journal, and the New York Post have filed a lawsuit against Perplexity, an AI startup, accusing it of copyright infringement. The lawsuit alleges that Perplexity unlawfully copies and uses content from publishers without permission, diverting readers and revenue. In July 2024, Dow Jones and the Post notified Perplexity of the issue but received no response. The lawsuit seeks damages and an injunction to stop Perplexity from using the copyrighted material without authorization. (Source: Variety)

Penguin Random House Bans AI Training with New Copyright Clause: Penguin Random House is addressing AI training with a new clause in its copyright pages. The updated text, appearing in both new and reprinted books, states that “no part of this book may be used or reproduced” for AI training. It also reserves rights from the European Union’s text and data mining exception. Although this marks Penguin Random House as a leader in confronting AI on copyright pages. The publisher remains committed to protecting the intellectual property of its authors and artists. (Source: The Verge)

Court Rules Against Deceptive 'Jan Aushadhi' Name Usage: The New Delhi District Court has granted a permanent injunction against an organization called “Jan Aushadhi Sangh” in Bhopal, Madhya Pradesh, for using a name deceptively similar to the registered trademark “Jan Aushadhi,” associated with the Pradhan Mantri Bhartiya Janaushadhi Pariyojana (PMBJP). The court found that the firm intended to confuse the public and exploit the goodwill of the original brand. The ruling prohibits the organization and its partners from using the name, orders the delivery and destruction of infringing materials, and awards ₹10 lakh in damages to the Pharmaceuticals and Medical Devices Bureau of India (PMBI). (Source: The Hindu)

Western Digital Hit with $316M Fine in Patent Battle: Western Digital Corporation has been fined $315.7 million by a California federal jury after losing a patent infringement case to SPEX Technologies. The lawsuit, initiated in 2016, centred on allegations that Western Digital's self-encrypting hard drives violated SPEX's data encryption patents. Despite the verdict, Western Digital plans to challenge the decision, asserting that its products do not infringe the patents. This ruling is the second major patent loss for the company in 2024, coinciding with its strategic shift to split into two entities focused on hard drives and flash memory, raising concerns about the impact of ongoing legal challenges. (Source: Lawyersmonthly)

CNIPA'S Patent-Intensive Industries Statistical Monitoring Report: On October 16, 2024, China’s National Intellectual Property Administration (CNIPA) published the “China’s Patent-Intensive Industries Statistical Monitoring Report.” This report highlights the significant role of patent-intensive industries in China's economy, which accounted for nearly 50% of national R&D investment, 70% of invention patents, and contributed 12.71% to the GDP in 2022. The added value of these industries rose to 15.32 trillion RMB, reflecting a 9.36% annual growth rate. Notably, the information and communication technology sectors experienced substantial growth, while R&D spending increased to 1.14 trillion RMB, indicating robust investment in innovation and productivity. (Source: The National Law Review)
References:
Basu, M. (2023, November 28). Indian researchers paid $17 million to publish in open access journals in 2020, 57% of global total. ThePrint. https://theprint.in/science/indian-researchers-paid-17mn-to-publish-in-open-access-journals-in-2020-57-of-global-total/1861273/
Lawyer Monthly. (2024, October 21). Western Digital fined $316M for data security patent infringement amid strategic shift. https://www.lawyer-monthly.com/2024/10/western-digital-fined-316m-for-data-security-patent-infringement-amid-strategic-shift/
Roth, E. (2024, October 19). Penguin Random House books will now include a copyright clause banning AI training. The Verge. https://www.theverge.com/2024/10/18/24273895/penguin-random-house-books-copyright-ai
Spangler, T. (2024, October 21). News Corp’s Dow Jones and New York Post sue AI startup Perplexity for copyright infringement. Variety. https://variety.com/2024/biz/news/news-corp-dow-jones-ny-post-sue-perplexity-copyright-infringement-1236184900/
Subbiah, A., Subbiah, G., & Kimidi, S. S. (2017). Should Indian researchers pay to get their work published? Current Science, 112(4), 703-713. https://doi.org/10.18520/cs/v112/i04/703-713
The Hindu Bureau. (2024, October 17). Court awards ₹10 lakh as damages to Jan Aushadhi in trademark battle. The Hindu. https://www.thehindu.com/news/national/court-awards-10-lakh-as-damages-to-jan-aushadhi-in-trademark-battle/article68761164.ece
Wininger, A. (2024, October 21). CNIPA releases China’s patent-intensive industries statistical monitoring report. The National Law Review. https://natlawreview.com/article/cnipa-releases-chinas-patent-intensive-industries-statistical-monitoring-report