Document Type

Article

Publication Date

6-3-2024

Abstract

Research works occupy a unique place in the knowledge economy. They are foundational to human development, and they expand our existing knowledge base and catalyze entirely new fields of study. Creators of research works have a significant interest in the public accessibility of their works at the earliest opportunity with no expectation of financial returns from sales and distribution. As such, they constitute a different category of works and facilitate distinct considerations than other creative goods governed by copyright. Copyright law is organized around the provision of economic incentives to facilitate the continued production and distribution of authorial works for societal progress and development. It rests on the assumption that authorial motivation is the same for all authors – economic – and that the existing panoply of exclusive rights work favorably for authors of every kind of work. However, copyright law systematically fails to address and protect the motivation of research authors, namely, the widespread dissemination of their works at the earliest possible opportunity. Authors of journal articles routinely give up copyright in their works and any royalties that may accrue in exchange for publication, even under the strictest public access conditions. This Article argues that there should be differentiated treatment of research works in copyright law. The Article proposes the creation of an inalienable and nonwaivable secondary publication right for research authors. Such a secondary publication right will empower authors of research works to make the final reviewed and accepted version of a manuscript publicly accessible on a digital platform without the need for prior approval from the journal publisher and regardless of any term to the contrary in the publishing agreement. The secondary publication right would vest upon first publication of the work by the publisher. It would stimulate the production of research works and their dissemination to the public, thus offering alignment among copyright law’s goals of incentivizing authors and maximizing access to knowledge goods.

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