It is a coordination problem. I have lots of friends in academia, and they all have to publish in specific journals otherwise their research doesn't count toward tenure and promotion. They can scream that it's unfair, but if they don't publish in those journals, they literally lose their jobs, and somebody willing to publish in those journals will be hired.

Follow the incentives.

Who writes the rules dictating which journals count? Can we just use legislation to make public and public-funded universities allow open access journals?

In general, academics will care about the rules imposed by funding agencies i.e. the politicians which want an evaluation that Elsevier et al somehow fulfill. If the funding agencies would say that an open access journal "counts" as much as Nature, that would be a big change, but they don't.

> Can we just use legislation to make public and public-funded universities allow open access journals?

Yes, in many countries legislation requires that some form of open access is used. As with FOIA or GDPR or other legislation which requires people disclose information it is not practical to go around arresting and jailing thousands of admin staff every week day for not complying, so you're dependant upon a cultural shift in society.

However, of course the for-profit journals will lobby to have the rules drafted in a way that permits them to continue to exist, even if they must make some sacrifices.

For example, "Green Open Access" versus "Gold Open Access". The latter requires publication in an Open Access journal, but the former just requires that the for-profit journal not unduly prevent the authors from archiving their own papers, perhaps under an embargo and with copyright permanently devoted to the journal publisher.

In practice, the reality before Open Access but after the Internet was available to academics is that you could get a "pre-publication draft" of more or less any paper by contacting the author. Of course, to know you want the paper is difficult if you can't read the journals everybody is publishing in. So Green Open Access satisfies the obvious technical requirement that if I hear about Professor Smith's breakthrough in Vulcan Unicorn Steel I can go read the paper without paying Elsevier a pile of cash, but doesn't really free Vulcan Unicorn Metal research from funding Elsevier. Smith's peers read about it in the Elsevier journal their institutions pay $$$ to receive copies of and that's how I heard it's a breakthrough.

Definitely no malice. You could start an open-access journal and claim that it will be as selective and prestigious as Nature. But where are your initial papers going to come from? Can you get enough people to submit their Nature-level paper to your journal?

Acta Vertebrata closed exactly for this

It's not malice. Academics just lack interest in improving a system when that improvement doesn't immediately benefit them.

There are much more difficult coordination problems that people are at least making some progress on, like fighting climate change. This is because a lot of people care about not letting the planet overheat, including the powerful. But academics largely don't care if their research is easily accessible to anyone who isn't citing them or on their tenure committee.

There’s a burgeoning open access movement. Arguably successful, but let’s not act like people aren’t trying. Not to mention preprint servers and various other “nod and wink” mechanisms scientists use to free their own work.

There are some academics who are passionate about this and make a real contribution, no question.