Do copyrights and firewalls on academic journals violate the US Constitution?

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What percent of authors of articles in refereed academic journals are motivated to write for the royalties they expect to receive from publication?

More specifically, is there any documentation of any refereed academic journal offering substantive payment for articles published? In rare cases, the author of this article has seen prizes for, e.g., best paper of the year. However, to the extent that this author's experiences are typical of academic publishing, no reasonable human would submit an article to a refereed academic journal expecting substantive income derived from copyright royalties. Instead, researchers write to be read and cited, to contribute to the shared body of knowledge and culture of humanity, and to build their reputations. Many also write in part because hiring and promotions for many positions are based in part on publication records, especially at major research universities in the US.

In contrast, for many refereed academic journals, authors are required to assign the copyright to the journal as "a work made for hire", even though it wasn't. Prior to the Internet, that was justified to cover the costs of printing and distribution. Those days are gone.

Copyright Clause of the US ConstitutionEdit

The Copyright Clause of the US Constitution says, "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".[1] Moreover, the Preamble to the United States Constitution says it was written in part to "promote the general welfare".

People who submit articles to refereed academic journals do so to be read and to build their reputations. To the extent that this is accurate:

  • Firewalls on academic journals are obstacles to "the progress of science and the useful arts". They are obstacles to promoting the general welfare, in apparent violation of the US Constitution.

Why is this still part of US and international law?Edit

One reason why this is still part of US and international law is that the major media have an inherent conflict of interest in honestly reporting on anything relating to copyright law. All revisions of US copyright and other law affecting the media in the last 100 years have been mostly written by and for the major media, approved by legislators, many and probably most of whom received "campaign contributions" from such media. Most of those legislators also doubtlessly knew that it would likely be political suicide to oppose the mainstream media.[2] Lawrence Lessig, who led the plaintiff's team in Eldred v. Ashcroft, said he lost that case, because he focused on the law and neglected the economics.[3]

Are there are other justifications for copyrights held by academic journals?

In particular, are copyrights and firewalls on academic journals accidents, failures of the US Congress to fully consider the ramifications of what they've enacted? Or are they monuments to political corruption?

What to do?Edit

To the extent that copyrights and firewalls on academic journals are obstacles to "the progress of science and the useful arts", there are things that individual researchers, academic administrators, and the public can do to help overcome this problem:

  • RESEARCHERS can submit their work only to open-access journals and refuse to submit their work to journals that will put their work behind a paywall. (No one who wants to be cited wants their work behind a paywall if there is a reasonable alternative, because the firewall would likely reduce their audience.)
  • ADMINISTRATORS managing research that produce articles for academic publications can insist that their researchers submit their work only to open-access journals. (Anyone wanting to build the reputation of their research wants their publications to be read. Paywalls and copyrights are obstacles to that.)
  • CITIZENS should demand that their elected officials enact two reforms affecting copyrights:
- All government funded research should either be in the public domain or carry a license no more restrictive than Creative Commons Attribution Share-Alike 4.0 International license and should not appear behind a paywall.
- Copyright law should be changed to forbid restrictive copyrights on "works for hire" when they are not actually written with a plausible expectation of receiving income derived from copyright royalties. This would leave in place all current practices for publications other than academic journals.


  1. US Constitution, Article I, Section 8, Clause 8. See also the discussion in the Wikipedia article on "Copyright Clause".
  2. e.g., Robert W. McChesney (2004). The Problem of the Media: U.S. Communication Politics in the 21st Century. Monthly Review Press. Wikidata Q7758439. ISBN 1-58367-105-6. . See also Guy Rolnik; Julia Cagé; Joshua Gans; Ellen P. Goodman; Brian G. Knight; Andrea Prat; Anya Schiffrin (1 July 2019), Protecting Journalism in the Age of Digital Platforms (PDF), Booth School of Business, Wikidata Q106465358
  3. Lawrence Lessig (1 April 2004). "How I Lost the Big One". Legal Affairs. Wikidata Q112663181. ISSN 1538-8123.