The Stationers' Company

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Open Access and Scholarly Publishing

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The advent of digital led to an unprecedented increase in information-sharing around the world. With the ease of access to information, copyright may come to be seen as a barrier to knowledge, stopping the progress of development around the world, as the default is that rights are restricted, stopping creative works which could be so easily shared. The freedom to distribute and modify creative works and software can be difficult to achieve under current copyright frameworks, or perceived as such. The typical copyright declaration of ‘all rights reserved’ allows only the rights holder to modify, distribute, or display the work, and consumers can do nothing without a specific licence. This attitude, however, has been tackled by the establishment of two parallel movements which increase accessibility of information through a variety of means. The Free Software Movement65 and Free Culture Movement66 created new avenues for sharing and greatly increased the amount of information available online, free of charge, for reuse or adaptation, in an entirely legal and licensed way. The basic philosophy behind these movements is that creative works should be available for free reuse, through standard licensing terms which make it simple to make work available online, with permissions on re-use and adaptation embedded into standard licence clauses. The open accessibility of information will then, in theory, lead to greater development, more sharing, and more interaction. Thus, knowledge- sharing has manifold benefits, and few disadvantages.

The distinction between free software and free culture is relatively self-explanatory – the free software movement applies to software, and the free culture movement to other cultural media.

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63 Flickr allows users to select which licence they wish to make their work available under. These photos are then collected and are available (together with information on Creative Commons licences) on the Creative Commons page of the Flickr website: Flickr, ‘Creative Commons’ (Flickr) <https://www.flickr.com/creativecommons/> accessed 11 November 2015.

64 Cory Doctorow is a British-Canadian blogger and science fiction author. He made his earlier books available under a CC-BY-NC-SA licence, but later changed to use a NoDerivs licence. His books are all available in a variety of ebook formats on his website, Craphound <http://craphound.com/> accessed 11 November 2015. BoingBoing.net is a technology blog first established as a zine [a self-published magazine or fanzine] in 1988 and was established as a website in 1995. BoingBoing <www.boingboing.net> accessed 16 November 2015.

65 Richard Stallman, Free Software, Free Society: Selected Essays of Richard M Stallman (Free Software Foundation, Inc 2006); Margaret S Elliott and Walt Scacchi, ‘Mobilization of software developers: the free software movement’ (2008) 21(1) Information Technology & People 4; Peter Wayner, Free For All – How Linux and the Free Software Movement Undercut the High Tech Titans (Harper Business 2000).

66 Lawrence Lessig, Free culture: How big media uses technology and the law to lock down culture and control creativity (Penguin 2004).

   

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There are, inside of and related to these twin movements, many other interlocking movements and ideals, including Open Access (OA), Access to Knowledge (A2K),67 Copyleft,68 Open Source learning,69 the Free Software Foundation,70 and numerous others. There are debates about the differences between these social movements and the distinctions between free and open.71 The movement discussed in more detail here is OA, but it is important to note the variety of other movements which are interconnected – the freedom to choose how and when and why to open up creative content is one of the fundamental strengths of copyright – the choice of how to manipulate their creative works and how to license it is left to the rights holder.

Although OA shares some commonalities with the Free Knowledge ethos, it has slightly differing ideals – rather than concentrating on the free, open and adaptable use of any information, it focuses specifically on academic and scholarly research. OA is defined as ‘the practice of providing unrestricted online access to scholarly research.’72

 

67 Access to Knowledge as a movement rests on the ideal that access to knowledge should be linked to basic human ideals of justice, freedom, and economic development. Lea Shaver, ‘The Right to Science and Culture’ (2010) 1 Wisconsin Law Review 121.
68 Copyleft is a general method of making a program (generally, although other works are also applicable) free, and requiring that subsequent modifications and extended versions of that program to be free also. Copyleft is a generalised concept which is given effect in the GNU General Public Licence. For more, see – –, ‘What is Copyleft?’ (GNU Operating System website) <https://www.gnu.org/copyleft/> accessed 12 November 2015; – –, ‘GNU General Public Licence’ (GNU Operating System website) <https://www.gnu.org/copyleft/gpl.html> accessed 12 November 2015.

69 David Preston, ‘Open Source Learning’ (TED Talk, TEDxUCLA, 27 October 2012) <http://tedxucla.org/2014/09/25/david-preston/> accessed 12 November 2015.
70 The Free Software Foundation is a company which supports free software initiatives. It is a sponsor of the GNU Operating System, which in turn is the source of the Copyleft licence idea, and FSF also publishes the GNU General Public Licence, as well as other Free and Open licences – thus we can see here the interlinking nature of Free and Open movements. – –, ‘About’ (Free Software Foundation) <http://www.fsf.org/about> accessed 12 November 2015.
71 An example of this debate can be seen in Richard Stallman, ‘Why Open Source misses the point of Free Software’ (GNU Operating System website) <http://www.gnu.org/philosophy/open-source-misses- the-point.html> accessed 13 January 2016. Richard Stallman is the founder of the GNU movement and president of the Free Software Foundation.
72 Although there are sometimes stated to be two separate degrees of Open Access – gratis OA, which provides access rights [ie reading/downloading the paper] and libre OA, which provides additional usage rights [ie usage/distribution/modification rights], in practice, this distinction is irrelevant – for the purposes of this discussion, we will assume that we are discussing libre open access. Peter Suber, ‘Gratis and libre Open Access’ (Sparc, 2008) <http://sparcopen.org/our-work/gratis-and-libre-open- access/> accessed 18 January 2016.

       

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Although OA was originally intended solely for academic journals, it expanded its boundaries to include also theses, book chapters, and even monographs.73 Open Access is a philosophy, and requires a framework underneath it to support the provision of OA rights.74

This is achieved, for the most part, through Creative Commons licences. The Creative Commons organisation, founded by Lawrence Lessig, Hal Abelson and Eric Eldred, published a range of standard licences for use by rights holders.75

[Creative Commons licences] provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice. CC licenses let you easily change your copyright terms from the default of ‘all rights reserved’ to ‘some rights reserved.’76

Creative Commons licences fall into several categories, with the content owner being able to make decisions about the degree to which they would like their work to be made available. These range from the CC-0 licence, where the rights holder waives all rights to their work entirely, dedicating their work to the public domain, all the way up to CC-BY-NC-ND, which allows others to download and share work, provided that the work is credited, but prohibits any changes to the work or commercial uses. The flexibility of CC lies not only in the multiple options available to authors, but also in that the use of standard licences eliminates the need for each individual user to obtain a licence contract, and greatly reduces both the time and effort required to enable distribution and reuse of works.

CC licences offer six different options (besides the CC-0, which is a relinquishing of all rights) which combine different constituent parts to allow the rights holder to choose a licence tailored to their needs. The four specific parts are as follows:

BY – attribution. The licensor must credit the original creator of the work. NC – non-commercial. The licensor must not use the work for commercial purposes.

SA – sharealike. The licensor must licence subsequent or derivative works under the same terms as the original.

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73 Mikael Laakso and others, ‘The Development of Open Access Journal Publishing from 1993 to 2009’ (2011) 6(6) PLoS ONE e20961.
74 For an interesting and alternative explanation of Open Access, see Jorge Cham, ‘What is Open Access?’ (PhD Comics, 24 October 2010) <http://www.phdcomics.com/comics.php?f=1533> accessed 13 January 2016.

75 Creative Commons <http://creativecommons.org> accessed 18 December 2015.
76 – –, ‘About’ (Creative Commons) <http://creativecommons.org/about> accessed 18 December 2015.

   

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ND – no derivatives. The licensor must not change or edit the work, but may redistribute it.

These terms can then be combined to create six different licences which allow for users to specify the uses they are permitting of their works; for example, a CC-BY-NC-SA licence allows non-commercial remixing, tweaking or editing of a work, provided the creator is acknowledged, and derivative works are licensed under the same terms. Thus, rights holders can use licences which give specific guidance as to what is and is not permissible, but still license their works on a large scale which does not require individual negotiation for each person who wishes to use the creative work. Creative Commons licences are used in many innovative ways. Flickr, the image-sharing site, encourages users to use CC licences for photo sharing, and has specific directories which allow other users to browse CC images;77 Wikipedia, the online encyclopaedia, uses a Creative Commons Attribution Share-Alike Licence which allows its content to be reused freely, provided that derivative works are shared under the same licence terms;78 sci-fi author and BoingBoing editor Cory Doctorow uses CC licences to make his work available online under a CC-Non-Commercial-Share-Alike licence (BY-NC-SA) or Non-Commercial-No-Derivatives (BY-NC-ND), and monetises his content for commercial and printed purposes.79 The purposes for which CC licences can be used are incredibly varied, which is a part of their appeal.

Thus, in as short an explanation as possible, OA is the philosophy of allowing free access to works, and CC is (one of) the licensing framework(s) which allows that to happen.

For academic research specifically, OA is a goal which seems, at first glance, to be easily obtainable – the majority of academic authors receive no monetary compensation for their work, and thus making their work freely available online will not harm their income streams. Furthermore, as academics, they are likely to be the same people who are both publishing and consuming literature in their own field, and thus the OA movement would also have benefits for them as users.

While this may negatively affect publishers’ business models – products which are also freely available online are not likely to make as much profit – and costs such as editing, typesetting

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77 Flickr (n 63).
78 Wikipedia (n 61).
79 See, for example, Cory Doctorow, ‘Download Little Brother for free’ (Craphound) <http://craphound.com/littlebrother/download/> accessed 18 December 2015; Cory Doctorow, ‘About Little Brother’ <http://craphound.com/littlebrother/about/#freedownload/> accessed 18 December 2015.

  

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and printing must still be met, a balance has been struck through the development of two different models of OA. This allows publishers to sustain their business and ensure the rigorous academic standards expected of UK research are maintained. The two parallel models of OA publishing are known as Green and Gold OA.

Green OA allows authors to publish their papers and articles with journals, free of charge, and then make them publicly available after an embargo period has passed. The length of this period depends on the particular journal, but is generally three to six months, with scientific journals having shorter embargo periods as a rule. The articles may be deposited in a repository at the time of publication, but must not be made available until the embargo period has passed.80

Gold OA is publishing in specifically OA journals. These journals make their content available free of charge, through a variety of business models.81 Authors may be required to pay an article processing charge (APC) to the publisher in order to publish with an OA journal.82 There are also hybrid journals, which publish some articles OA, and some closed access. Many grant providers include funding to cover the payment of these APCs.83 Although Gold OA is often thought of as requiring the payment of an APC, this is not necessarily the case. In 2012, Solomon and Björk found that only 26% of journals listed on the Directory of Open Access Journals (DOAJ) were self-reporting as charging APCs.84

Open Access (or the idea behind it) was suggested as early as 1994, in Stevan Harnad’s Subversive Proposal85 that esoteric (ie research) authors archive their papers online in an FTP archive. This developed over the intervening years, until the coining of the phrase Open Access and agreement of a definition at the Budapest Open Access Institute (BOAI) in 2002.86 In order to achieve widespread free online access to academic research, the BOAI recommended both that authors be allowed to self-archive (also in institutional repositories) and that journals move toward becoming OA, through the launch of new journals which were OA from inception, and

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80 See, for example, UCL, ‘Green Open Access’ (UCL Library Services) <https://www.ucl.ac.uk/library/open-access/green> accessed 18 December 2015.
81 See – –, ‘OA journal business models’ (Open Access Directory) <http://oad.simmons.edu/oadwiki/OA_journal_business_models> accessed 18 December 2015.
82 David J Solomon and Bo-Christer Björk, ‘A Study of Open Access Journals Using Article Processing Charges’ (2012) 63(8) Journal of the American Society for Information Science and Technology 1485. 83 ibid.
84 ibid 1485.
85 Stevan Harnad, ‘Subversive Proposal’ (bit.listserv.vpiej-l, 28 June 1994) <https://groups.google.com/forum/?hl=en#!topic/bit.listserv.vpiej-l/BoKENhK0_00> accessed 13 January 2016.
86 Budapest Open Access Initiative (2002) <http://www.budapestopenaccessinitiative.org/read> accessed 13 January 2016.

    

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aiding the transition of existing journals to OA models. The BOAI definition of OA gave a concrete form to an idea which had been around for years previously, one which remains as a standard even more than a decade after it was first stated.

By ‘open access’ to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.87

Under this definition, not all CC licences meet the standards of Open Access. Specifically, those which place restrictions on the works, other than attribution (the CC-BY licence) fail to meet the standards outlined in the BOAI declaration.

In the UK, OA was pushed to the forefront of discussion in 2011. The Finch Report, which was aimed at improving access to published research findings, cemented OA as the gold standard for publishing.88 The Finch Report was published by the Working Group on Expanding Access to Published Research Findings, which was set up in 2012 by the then-Minister for Universities and Science. Its mission was stated as follows:

we were charged with recommending how to develop a model, which would be both effective and sustainable over time, for expanding access to the published findings of research.89

This report made several recommendations on improving access to research publications, including that UK policy support OA publishing as a policy, particularly where research is publicly funded. The Finch Report’s recommendations were accepted by the UK government in July of 2012.90

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87 ibid.
88 Working Group on Expanding Access to Published Research Findings, ‘Accessibility, sustainability, excellence: how to expand access to research publications’ (2012) (Finch Report).
89 Finch Report (n 88) 2.
90 Department for BIS, ‘Government to open up publicly funded research’ (Announcement, 16 July 2012) <https://www.gov.uk/government/news/government-to-open-up-publicly-funded-research> accessed

 

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At the same time the UK Research Council (RCUK) published its OA policy,91 which indicated Green OA, rather than Gold, as a more cost-effective method of making research available OA. The use of embargo periods removed the need for research institutions to pay APCs, meaning that publishing OA placed less of a burden on researchers in making their research freely available.92 The following day, the European Commission issued a Communication that recommended basing their policy concerning providing better access to scientific research on the RCUK policies. 93 These three documents (RCUK guidelines, governmental acceptance and EC Communication) were all published within two days of each other, leading to some conflicting directives on how OA should best be achieved – the Green or Gold routes. Nonetheless, all three advocated for OA as an industry standard.

In the years following these three big movements towards OA, its prominence in academia has only increased. The last Research Excellence Framework (REF) – the metric by which higher education research centres are assessed – concluded in 2014. The REF published a policy in March 2014 stating that all journal articles and conference proceedings published after April 1 2016 must be Open Access in order to be eligible for submission to the post-2014 REF.94 Given that the REF is used to inform the funding allocation of the four higher education funding bodies,95 the importance of research outputs being eligible for submission to the REF cannot be overstated. However, it is worth noting that the REF’s requirement for OA only states that papers must be available to read and download – therefore a CC-BY-ND licence would be acceptable to meet REF standards, a less stringent requirement than that put forward by the BOAI definition of OA.96

13 January 2016. The government rejected one proposal on lowering VAT rates applicable to e-journals, but this is not relevant to the topic at hand.

91 RCUK, ‘RCUK Policy on Open Access and Supporting Guidance’ (2012) <http://www.rcuk.ac.uk/RCUK-prod/assets/documents/documents/RCUKOpenAccessPolicy.pdf> accessed 13 January 2016.

92 ibid.
93 Commission, ‘Towards better access to scientific information: Boosting the benefits of public investments in research’ (Communication) COM (2012) 401 final.
94 HEFCE, ‘Policy for open access in the post-2014 Research Excellence Framework’ (2014) <http://www.hefce.ac.uk/media/hefce/content/pubs/2014/201407/HEFCE2014_07.pdf> accessed 13 January 2016.
95 – –, ‘About the REF’ (REF.ac.uk) <http://www.ref.ac.uk/about/>accessed 11 June 2015.
96 HEFCE (n 94). Although the policy was updated in July 2015, this requirement remained unchanged. HEFCE, ‘Policy for open access in the post-2014 Research Excellence Framework Updated July 2015’ (2015) <http://www.hefce.ac.uk/media/HEFCE,2014/Content/Pubs/2014/201407/HEFCE2014_07_updated%20J uly%202015.pdf> accessed 13 January 2016.

   

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The growth of OA in the first half of the 2010s was rapid – the DOAJ97 listed more than ten and a half thousand OA journals in 2015,98 a tenfold increase in ten years.99 However, with the growth of OA, it has brought a new set of problems for authors to face. Shifting the financial burden from subscriptions to APCs has brought its own range of issues, including increasing costs for universities and other research-producing institutions. This was acknowledged in the Finch Report.100 However, this assumes that all OA journals will charge APCs. In 2011, Solomon and Björk conducted a study of OA journals and found that just over 26% of those listed on the DOAJ at the time charged APCs.101 Thus, although the Finch Report did not acknowledge that Gold OA does not always require the payment of APCs,102 this is manifestly the case. Some three- quarters of OA journals in 2011 were using alternative methods of funding their journals. This was backed up by a further study in 2013, which set the number of journals using APCs at 28%.103 This varied greatly depending on discipline, though, with medicine the highest users of APCs at 47%.104 It was further found that those OA journals which charged APCs consistently had higher citation numbers than those which did not.105 This then creates an issue for those authors who might be less well-funded, and therefore face economic barriers to the payment of APCs.106 While there are some waiver programs in place, the effect of OA in certain scenarios is simply to shift the access problem from the reader to the author of a particular article, in cases where the author’s institution or funding is unable to cover the cost of an APC.107 APCs can vary in both amount and format – some journals charge per page, while others charge a single article fee. They can range from $8 to $3,900108 depending on the journal, the length of the article, and the subject area. Björk and Solomon found that by far the greatest expenditure on APCs was in

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97 Directory of Open Access Journals <http://doaj.org/> accessed 13 January 2016.
98 As of June 2015.
99 Stevan Harnad and others, ‘The Access/Impact Problem and the Green and Gold Roads to Open Access’ (2004) 30(4) Serials Review 310.
100 Finch Report (n 88) 73-76.
101 Solomon and Björk, A Study of Open Access Journals Using Article Processing Charges (n 81).
102 Finch Report (n 88) 72.
103 Marcin Kozak and James Hartley, ‘Publication Fees for Open Access Journals: Different Disciplines— Different Methods’ (2013) 64(12) Journal of the American Society for Information Science and Technology 2591.
104 ibid.
105 Bo-Christer Björk and David Solomon, ‘Open access versus subscription journals: a comparison of scientific impact’ (2012) 10(73) BMC Medicine.
106 Richard Poynder, ‘The Finch Report and its implications for the developing world’ (Open and Shut?, 18 July 2012) <http://poynder.blogspot.co.uk/2012/07/the-finch-report-and-its-implications.html> accessed 13 January 2016.
107 Townsend Peterson and others, ‘Open Access and the Author-Pays Problem’ (2013) 1(3) Journal of Librarianship and Scholarly Communication 1.
108 Solomon and Björk, A Study of Open Access Journals Using Article Processing Charges (n 82).

  

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the area of biomedicine, which spent over seven hundred times the amount spent by Arts and Humanities in 2010.109

When considering how and where to publish, academics need to take into account a number of factors. The source of funding and, from 2016, REF eligibility of the article will determine whether OA publishing is required, as well as the institution’s policy. On top of this, once it has been decided that the article will be published OA, the choice between Green and Gold must be made. Where Gold OA is chosen, the selection of journal will then determine whether or not an APC must be paid. If this is the case, then the source of funding for the APC will also have to be clarified, and the amount of the APC will have to be considered, especially for those authors funding their own APCs.110 Some funding bodies provide for APC charges in their grants, and several institutions (UCL included)111 have central APC funds which can be used to meet the charges. As well as this, authors need to consider other factors such as journal impact,112 number of citations, journal fit and turnaround time.113

There are, of course, difficulties which come with the increase in OA. Much like the great innovation of email was accompanied by the development of email spam, OA is open to abuses on several planes. The rise of so-called ‘predatory publishers’ running counterfeit OA journals provides a worrying new trend for authors to avoid. The system is relatively simple – these ‘predatory’ journals charge authors in the form of APCs, but do not provide the usual editorial and publishing services which come with traditional journal publishing, whether OA or not. They then publish low quality, non-peer reviewed, and inferior research. The issues with this are two-fold. Not only are authors required to pay APCs which far outweigh the costs of publication, but even those genuine, scientifically sound papers which are published with the counterfeit journals are then tainted by the association with low-quality scholarly outputs and poor practice. Jeffrey Beall, of the University of Colorado Denver, highlighted this problem in 2012 in Nature,114 and Learned Publishing.115 Beall is also the curator of ‘Beall’s List: Potential,

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109 ibid 1490.
110 David J Solomon and Bo-Christer Björk, ‘Publication Fees in Open Access Publishing: Sources of Funding and Factors Influencing Choice of Journal’ (2012) 63(1) Journal of the American Society for Information Science and Technology 98.
111 UCL, ‘Gold Statistics’ (UCL Library Services) <https://www.ucl.ac.uk/library/open-access/statistics> accessed 18 December 2012.
112 Björk and Solomon, Open access versus subscription journals: a comparison of scientific impact (n 105)
113 Solomon and Björk, A Study of Open Access Journals Using Article Processing Charges (n 82).
114 Jeffrey Beall, ‘Predatory publishers are corrupting open access’ (2012) 489 Nature 179.
115 Jeffrey Beall, ‘Predatory publishing is just one of the consequences of gold open access’ (2013) 26(2) Learned Publishing 79.

 

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possible, or probable predatory scholarly open-access publishers’.116 This list, which is updated regularly, names journals that engage, or may engage, in such predatory schemes, taking advantage of young or inexperienced authors and damaging the open ethos which is advancing scientific journalism and making it open for all in the 21st century. The criteria for inclusion in the list are available online117 and subject to regular revision: it was updated in 2015.118 Further, publishers may appeal their inclusion on the list, ensuring a degree of accountability, fairness, and transparency in the maintenance and curation of the list. Beall also curates a list of standalone journals (as opposed to publishers) which engage in predatory behaviour.119

Predatory behaviour from publishers and standalone journals is an issue especially for new, young, or inexperienced academics, especially those who may be research students or early career academics – their lack of experience in publishing academically may lead to them being more vulnerable to predatory publishing models. Universities may give guidance on this through their publishing and open access teams.120

In 2013, John Bohannon published an article in Science magazine, entitled ‘Who’s Afraid of Peer Review?’,121 a critique of Open Access journals’ review and acceptance policies. It described the submission of a bogus paper to 304 OA journals, with 255 responses, and a 60% acceptance rate. This, Bohannon stated, showed that peer review as a system had lost its integrity when connected to OA journals, and the acceptance of a scientifically unsound paper to such a high proportion of journals showed the unworkability of such a system.122

However, there were a number of flaws with his declarations. Firstly, of course, was the fact that the hoax was conducted without scientific research basis, and thus cannot be considered more

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116 Jeffrey Beall, ‘Beall’s List: Potential, possible, or probable predatory scholarly open-access publishers’ (Scholarly Open Access) <http://scholarlyoa.com/publishers/> accessed 18 December 2015.
117 Jeffrey Beall, ‘Criteria for Determining Predatory Open-Access Publishers (2nd edition)’ (Scholarly Open Access, 1 December 2012) <http://scholarlyoa.com/2012/11/30/criteria-for-determining-predatory- open-access-publishers-2nd-edition/> accessed 18 December 2015.

118 Jeffrey Beall, ‘Criteria for Determining Predatory Open-Access Publishers (3rd edition)’ (Scholarly Open Access, 1 January 2015) <https://scholarlyoa.files.wordpress.com/2015/01/criteria-2015.pdf> accessed 13 January 2016.
119 Jeffrey Beall, ‘List of Standalone Journals’ (Scholarly Open Access) <http://scholarlyoa.com/individual- journals/> accessed 13 January 2016.

120 See, for example, UCL, ‘Open access: frequently asked questions’ (UCL Library Services) <https://www.ucl.ac.uk/library/open-access/faqs> accessed 13 January 2016 (How can I be sure that an open access publisher is genuine/ethical/not a ‘predatory publisher’?); University of Manchester, ‘Advice on predatory journals and publishers’ (Open Access at Manchester) <http://www.openaccess.manchester.ac.uk/checkjournal/predatoryjournals/> accessed 13 January 2016. 121 John Bohannon, ‘Who’s Afraid of Peer Review?’ (2013) 342 Science 60.
122 ibid.

        

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than anecdotal. Secondly, the list of journals to which the paper was submitted made no distinction between ‘predatory’ journals, as already discussed, and more ‘respectable’ OA journals. The journals to which the papers were sent were taken from Beall’s list,123 DOAJ124 or both.125 Taking journals from Beall’s list would, naturally, lead to unsatisfactory outcomes and poor practice. The paper was only submitted to those journals which used an APC system, although in the article these are incorrectly referred to as Gold OA journals, meaning that the hoax did not engage with the full spectrum of Gold OA, and certainly not Green OA. Finally, the article was not submitted to any closed access journals, meaning that it is impossible to draw links between the article acceptance rate and the journal model, as there is nothing against which to compare it. These flaws were pointed out by several critics very shortly after publication, including PubChase,126 the Martinez-Arias Lab,127 scientific OA-publishing project PLoS co-founder Michael Eisen,128 and Ian Dworkin.129 Many of these (especially Dworkin) also linked to other commentaries on the article, with a shared conviction that the issue highlighted in the article was not OA, but rather the difficulties of peer review and the predatory OA journal model. Overall, while Bohannon’s article could well have highlighted fatal flaws in OA journal models, equally it could have highlighted an issue with the peer review system – something common to both OA and closed access journal publishers.130 Alternatively, it could be interpreted as highlighting the issue of predatory OA publishers, as discussed above – this was indeed the view taken by Beall himself.131 Thus, without a more research-oriented approach to conducting a truly scientific study of the acceptance rates of OA journals as against traditionally published journals, the merits of Bohannon’s article are sadly far less than they could have been.

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123 Beall’s List (n 116).
124 Directory of Open Access Journals (n 97).
125 Bohannon (n 121) 61-2.
126 Lenny Teytelman, ‘What Hurts Science – rejection of good or acceptance of bad?’ (PubChase, 4 October 2013) <http://blog.pubchase.com/what-hurts-science-rejection-of-good-or-acceptance-of- bad/> accessed 13 January 2016.
127 Martinez-Arias Lab, ‘On prepub servers and DORA, a glimpse of a future that is upon us’ (Martinez- Ariaz Lab Department of Genetics, 7 October 2013) <http://amapress.gen.cam.ac.uk/?p=1239> accessed 13 January 2016.
128 Michael Eisen, ‘I confess, I wrote the Arsenic DNA paper to expose flaws in peer-review at subscription based journals’ (it is NOT junk, 3 October 2013) <http://www.michaeleisen.org/blog/?p=1439> accessed 13 January 2016.
129 Ian Dworkin, ‘Fallout from John Bohannon’s “Who’s afraid of peer review”’ (Genes Gone Wild, 14 October 2013) <http://genesgonewild.blogspot.co.uk/2013/10/fallout-from-john-bohannons-whos- afraid.html> accessed 13 January 2016.
130 Curt Rice, ‘Open access publishing hoax: what Science magazine got wrong’ (The Guardian, 4 October 2013) <http://www.theguardian.com/higher-education-network/blog/2013/oct/04/science- hoax-peer-review-open-access> accessed 13 January 2016.
131 Jeffrey Beall, ‘Science Magazine Conducts Sting Operation on OA Publishers’ (Scholarly Open Access, 3 October 2013) <http://scholarlyoa.com/2013/10/03/science/> accessed 13 January 2013.

         

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Although the article headline stated that there was a worrying correlation between OA journals and a lack of rigorous peer review – even some of those journals which flagged the paper’s potential issues at review accepted it, and some journals published even after the author withdrew132 – the actual content of the Science article was as scientifically unsound as the bogus paper it based its investigation on, and its conclusions were incorrect in highlighting an issue with OA in general. In actuality, there have been more rigorously scientifically sound studies conducted on the retraction of articles, comparing OA and traditional publishing133 and the scientific impact of OA journals as against subscription models,134 both of which provided evidence as to the benefits of OA as against their subscription counterparts.135

Although OA does have some serious flaws – in the form of APCs creating barriers for less well- funded research institutions,136 the proliferation of predatory publishers and journals,137 and the increased financial burden on libraries and research institutions which are forced to both pay subscriptions to traditional publishers and APCs for OA publication – it is nonetheless a laudable and interesting subversion of the culture of publication. As well as this, it makes use of new types of copyright licensing – often, though not always, in the form of a CC licence – in order to allow greater circulation of papers without the need for individual licensing negotiations between researchers, publishers, institutions, or authors.

Advertising Initiatives for Infringing Websites

Chapters 3 and 4 discussed some of the legal and voluntary frameworks which were put in place in order to attempt to curb the growth of copyright piracy which arose in parallel with the rise of digital. The US CAS, as mentioned, is a voluntary system implemented with the cooperation of ISPs.138 It aims, in the first two strikes, to educate consumers about the ways to avoid online piracy, and directs users to lawful content sites. This educational method is less dictatorial than

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132 Bohannon (n 121) 64.
133 Gabriel M Peterson, ‘Characteristics of Retracted Open Access Biomedical Literature: A Bibliographic Analysis’ (2013) 64(12) Journal of the American Society for Information Science and Technology 2428.
134 Björk and Solomon, Open access versus subscription journals: a comparison of scientific impact (n 104).
135 Claire Redhead, ‘OASPA’s response to the recent article in Science entitled “Who’s Afraid of Peer Review?”’ (OASPA, 4 October 2013) <http://oaspa.org/response-to-the-recent-article-in-science/> accessed 13 January 2016.
136 Peterson and others (n 107).
137 Beall’s List (n 115).
138 Center for Copyright Information, ‘The Copyright Alert System’ (Center for Copyright Information) <http://www.copyrightinformation.org/the-copyright-alert-system/> accessed 18 December 2015.

  

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other methods of enforcement. The same mindset has been employed by British authorities and copyright organisations in trying to combat piracy through the CCUK.

In the City of London, the establishment of the Police Intellectual Property Crime Unit (PIPCU) created a dedicated task force to deal with the whole spectrum of IP infringements – from counterfeit physical goods to the online and digital content infringed every year. PIPCU was established in 2013, with £2.54m of funding from the IPO.139 Its original run of funding lasted until June 2015, but it was announced before then that more funding had been awarded to continue the unit until at least 2017.140 It falls under the remit of the Economic Crime Directorate, and consists of 20 staff members: detectives, analysts, and researchers. It is dedicated to protecting the UK industries that produce legitimate, high quality, physical goods and online and digital content from intellectual property crime.141

In an innovative approach to tackling online piracy, PIPCU combined with the UK advertising industry (represented by the Internet Advertising Bureau UK, the Incorporated Society of British Advertisers and the Institute of Practitioners in Advertising) and rights holders (represented by the Federation Against Copyright Theft (FACT), the British Phonographic Industry, International Federation of the Phonographic Industry, PRS for Music, the Publishers Association and the UK Interactive Entertainment Association) to create a joint task force.142 This combined task force is then responsible for ‘Operation Creative’, which is designed to disrupt and prevent websites from providing infringing content online. By July of 2015, more than six thousand websites had been disrupted.143

It works on the basis of a ‘follow the money’ approach – very few people will provide piracy services from pure altruism, and thus there must be opportunity for financial gain behind it. As

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139 Josh Halliday, ‘Intellectual property crime unit to be set up by City police’ (The Guardian, 17 December 2012) <http://www.theguardian.com/technology/2012/dec/17/intellectual-property-crime- unit> accessed 18 December 2015.
140 PIPCU, ‘PIPCU funding confirmed until 2017 – Commander Head “This is fantastic news for the City of London Police”’ (City of London Police, 18 November 2014) <https://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic-crime/pipcu/pipcu- news/Pages/pipcu-funding-confirmed-until-2017.aspx> accessed 13 January 2016.
141 PIPCU, ‘About PIPCU’ (City of London Police) <https://www.cityoflondon.police.uk/advice-and- support/fraud-and-economic-crime/pipcu/Pages/About-PIPCU.aspx> accessed 13 January 2016.
142 PIPCU, ‘Operation Creative and IWL’ (City of London Police) <https://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic- crime/pipcu/Pages/Operation-creative.aspx> accessed 13 January 2016.
143 City Police PIPCU (@citypolicePIPCU) (Tweet, 28 July 2015) ‘#DidYouKnow? Since #PIPCU launched, the team has disrupted more than 6,000 illegal sites selling #fake goods! Great stat for #TechTuesday!’ <https://twitter.com/citypolicepipcu/status/625999038316474368> accessed 13 January 2016.

        

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part of Operation Creative, rights holders identify and report websites which infringe creative content. The operation then targets the money behind these infringing websites by placing them on an infringing websites list (IWL). This list is provided to the advertisers, agencies and intermediaries involved in Operation Creative, who may then voluntarily choose to withdraw their advertising from those sites.144 This disruption of advertising revenue – which is largely what funds infringing websites (an estimated $277 million in 2013145) in turn seriously harms the business model of the infringer, without the need for obtaining any injunctions, blocking orders, or other legislative interventions.

The notion of an initiative which squeezes copyright pirates through financial disincentives is not new. In 2012, Google combined with PRS for Music to commission a report on the business models of copyright infringement.146 This quantitative report provided data on a sampling of the sites thought by rights holders to be facilitating major copyright infringement, providing information on their functional methods, funding, hosting, and user bases.147 The report identified six major business models – and for each of those segments it then identified the major economic drivers.148 The report was clear that squeezing the finances of infringing websites was a viable method of impeding their growth and continued existence.149 For three of the six segments, advertising revenue was the significant economic driver, meaning that an initiative tackling advertising revenues on those sites was likely to have a measurable impact.150

This method was tested in 2013 through a three-month pilot scheme, overseen by FACT.151 This successful pilot was then translated into a large-scale system which launched in 2014, with the backing of the already-mentioned list of creative industry figures, including CMOs, content owners, advertisers and (implicitly) the government, through its financial backing of PIPCU, via the IPO. Such a diverse collection of supporters is not only essential to the successful operation

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144 PIPCU, Operation Creative and IWL (n 142).
145 Digital Citizens Alliance, ‘Good Money Gone Bad. Digital Thieves and the Hijacking of the Online Ad Business: A Report on the Profitability of Ad-Supported Content Theft’ (2014) <http://media.digitalcitizensactionalliance.org/314A5A5A9ABBBBC5E3BD824CF47C46EF4B9D3A76/4af 7db7f-03e7-49cb-aeb8-ad0671a4e1c7.pdf> accessed 14 January 2016.
146 Google, PRS for Music, ‘The six business models for copyright infringement: A data-driven study of websites considered to be infringing copyright’ (2012) <https://docs.google.com/file/d/0Bw8Krj_Q8UaENDhEOG1LVFRhVkU/view> accessed 14 January 2016. 147 ibid.
148 ibid.
149 ibid.
150 ibid.
151 Stuart Dredge, ‘Forget suing filesharers: in 2014, anti-piracy efforts follow the money’ (The Guardian, 2 April 2014) <http://www.theguardian.com/technology/2014/apr/02/infringing-websites-list-anti-piracy> accessed 14 January 2016.