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A remarkable report has just been presented to the United Nations by the Special Rapporteur in the field of cultural rights, Farida Shaheed. It's called "Copyright policy and the right to science and culture".

A remarkable report has just been presented to the United Nations by the Special Rapporteur in the field of cultural rights, Farida Shaheed. It's called "Copyright policy and the right to science and culture" (.doc file). Here's its summary:

In the present report, the Special Rapporteur examines copyright law and policy from the perspective of the right to science and culture, emphasizing both the need for protection of authorship and expanding opportunities for participation in cultural life.

Recalling that protection of authorship differs from copyright protection, the Special Rapporteur proposes several tools to advance the human rights interests of authors.

The Special Rapporteur also proposes to expand copyright exceptions and limitations to empower new creativity, enhance rewards to authors, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works.

An equally important recommendation is to promote cultural and scientific participation by encouraging the use of open licences, such as those offered by Creative Commons.

As that last point suggests, this report is very closely aligned with open licences and open access, and readers of this blog will find much to applaud in it (they will also be pretty amazed that such a report was presented to the UN at all.) About open access, it says:

Increasingly, academic institutions, research foundations and governments are accelerating the transition by making open access publication the default approach to scientific and government publications. Recently, some government funders have started requiring publicly funded research to be made publicly accessible; many countries are considering similar steps.

In the wake of those policies to require publicly-funded research to be freely available, the world of open access has been grappling with the issue of publishers ignoring the open access licence, and putting behind paywalls content that institutions had already paid to be free for all. That happened back in 2014, and seemed to have happened again this year, as the researcher Ross Mounce explains:

Last Friday, I genuinely thought Elsevier had illegally sold me an article that should have been open access.

...

No one really knows how many articles are wrongly paywalled at all of Elsevier’s various different sales websites. So far, Alicia Wise (Elsevier’s Director of ‘Universal Access’) has admitted that 27 articles were wrongly paywalled in this latest incident and that “a handful” of these were sold to readers for $31.50 per article (source).

However, despite the appearance that something illegal was going on here, it probably wasn't. Here's why:

Conventional open access publishers simply confirm, via an informed consent process, that the author knows and wants their work to be published typically under the Creative Commons Attribution License (CC-BY). If it gets through the editorial & review process, it is published online solely under the terms of the CC-BY license, and this is clearly marked on the paper. Copyright is fully retained by the authors over their work at all times. It’s a clear one-step process. The publisher AND readers are both bound by the terms of the chosen CC-license.

But Elsevier, Wiley and other merchants of ‘hybrid OA’ do things differently. Typically, they grant themselves carte blanche rights for commercial usage in an author-publisher contract and then afterwards, they publish online the article under a Creative Commons (or other) license. In this case only the readers are bound by the terms of the ‘end-user’ licence – the publisher can to some extent do what they want with impunity.

In the open-source world we call this dual licensing: it allows the companies that hold the copyright to distribute programs under a free software licence - typically the GNU GPL - which applies to all those who download it, but also to use a commercial, proprietary licence for a different version, usually marketed as some kind of "premium" product, which customers must pay for and cannot share.

This is yet another example of open access recapitulating the trajectory of open source - something I wrote about last year. The fact that it is cropping up in open access was entirely predictable. As Mounce says, Elsevier's action here in asking people to pay for open access papers may not be illegal, but it is not something that researchers will be happy about.

There are two ways to deal with this. Either individual researchers must start reading contracts in detail - not something many will undertake given their lack of time and limited legal knowledge. Or the open access community must create some kind of central body that can draw up model contracts and is prepared to enforce them - in the courts, if necessary. It could also play an important role in fighting the increasing danger of openwashing, which is cropping all around the world of openness. In the open source world, there are several of these that do important work here. As well as umbrella organisations like the Open Source Initiative and the Software Freedom Conservancy, there are also project-specific foundations such as the Linux Foundation and the Apache Software Foundation.

Creating something similar for open access won't be easy - not least because funding is likely to be even harder - but the moment has now come for the open access community to take this crucial next step, just as the open source community did some years ago.

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