The open access movement has historically focused on access to scholarly research, and understandably so. The knowledge commons should be shared with and used by the public, especially when the public helped create it.
But that commons includes more than academic research. Our cultural commons is broader than what is produced by academia. Rather it includes all of the information, knowledge, and learning that shape our world. And one crucial piece of that commons is the rules by which we live. In a democratic society, people must have an unrestricted right to read, share, and comment on the law. Full stop.
But access to the law has been limited in practice. Not long ago, most court document and decisions were only available to those who had access to physical repositories. Digitization and the Internet changed that, but even today most federal court documents live behind a government paywall known as PACER. And until recently, legal decisions were difficult to access if you couldn’t afford a subscription to a commercial service, such as Westlaw, that compiles and tracks those decisions.
The good news: open access crusaders like Public.Resource.Org and the Center for Information Technology Policy have worked hard to correct the situation by publishing legal and government documents and giving citizens the tools to do so themselves.
The bad news: the specter of copyright has raised its ugly head. A group of standards-development organizations (SDOs) have banded together to sue Public.Resource.Org, accusing the site of infringing copyright by reproducing and publishing a host of safety codes that those organizations drafted and then lobbied heavily to have incorporated into law. These include crucial national standards like the national electrical codes and fire safety codes. Public access to such codes—meaning not just the ability to read them, but to publish and re-use them—can be crucial when there is an industrial accident; when there is a disaster such as Hurricane Katrina; or when a home-buyer wants to know whether her house is code-compliant. Publishing the codes online, in a readily accessible format, makes it possible for reporters and other interested citizens to not only view them easily, but also to search, excerpt, and generate new insights.
The SDOs argue that they hold a copyright on those laws because the standards began their existence in the private sector and were only later "incorporated by reference" into the law. That claim conflicts with the public interest, common sense, and the rule of law.
With help from EFF and others, Public.Resource.Org is fighting back, and the outcome of this battle will have a major impact on the public interest. If any single entity owns a copyright in the law, it can sell or ration the law, as well as make all sort of rules about when, where, and how we share it.
This Open Access Week, EFF is drawing a line in the sand. The law is part of our cultural commons, the set of works that we can all use and reuse, without restriction or oversight. Protecting that resource, our common past and present, is essential to protecting our common future. That’s why the open access movement is so important, and we’re proud to be part of it.
Between October 20 and 26, EFF is celebrating Open Access Week alongside dozens of organizations from around the world. This is a week to acknowledge the wide-ranging benefits of enabling open access to information and research—as well as exploring the dangerous costs of keeping knowledge locked behind publisher paywalls. We'll be posting on our blog every day about various aspects of the open access movement. Go here to find out how you can take part and to read the other Deeplinks published this week.