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Open Access Isn't Just About Open Access

October 25, 2014

Open Access Isn't Just About Open Access

This Open Access Week, we are celebrating and advocating for unfettered access to the results of research, a movement that has shown considerable progress over the last few decades. 

Let's all take a step back, though. Much of the open access movement is forward thinking, offering solutions and policy changes that will help improve access to future scholarship and research. This is crucial, but if we want real and meaningful open access, we must look backward as well. Many of us need access to the trove of existing and still very relevant material that is already locked up behind paywalls. This need has driven individuals to try to make such knowledge openly available—whether by sharing research articles with peers, or by doing whatever it takes to access and analyze the corpus of our collective scholarship.

Too often, however, these efforts are stymied by broad, harsh laws that may seem ancillary to publishing politics and academic debates. That's why the fight for open access must include challenges to the web of laws in which such scholarly discourse exists, such as overbearing copyright laws and unjust computer crime laws. We must acknowledge and fix these legal barriers in addition to pursuing open access policies on an institutional, state, and federal level all around the world. While such proactive policy steps are crucial, they must go hand-in-hand with addressing the bad policies that are already in place.

We Need Copyright Laws That Support Open Access to Our Knowledge Commons

Diego Gomez, a biodiversity researcher, could not access the biology papers he needed. Nor could his colleagues—fellow students and scientists in Colombia. Such articles are usually locked up behind expensive paywalls, with prices that add up even when doing a preliminary search. This cost is often mitigated by university subscriptions to journals but even the richest universities can't afford to pay for all the knowledge they need.

So Diego and his colleagues formed an online reading group where they uploaded and shared the latest findings. In an open access world, not only would this be allowed, it would be typical. Unfortunately, Diego soon found himself at the other end of a criminal copyright lawsuit and facing up to eight years in prison.

Paywalls tend to be the issue people point to most often when it comes to academic publishing, but those paywalls depend, in large part, on an elaborate system of copyright licensing. To state an obvious point that nonetheless seems to get lost: the legal key to publishers' ability to control access to knowledge is copyright. Researchers usually assign all their rights to the publisher, and the publisher is then free to parcel out the work as it sees fit.

That's why open access—which means not only availability of scholarly works, but also the ability to share, reuse, remix, and build upon research—relies on flexible copyright policies and open licenses.

Open access today can be divided into two main practices: "gold" open access and "green" open access. Gold open access involves putting research in an open access journal—most of which require publishing the work under a permissive Creative Commons license. The other practice, "green" open access or self-archiving, involves uploading works onto an online repository or a researcher's personal website. In this case, works are still legally bound under an "all rights reserved" scheme. This makes them vulnerable to a copyright claim, such as when giant academic publisher Elsevier sent takedown notices to universities and scholarly websites in late 2013 demanding that "infringing" material—papers uploaded by authors themselves—be removed.

The Elsevier takedowns illustrate an important gap between what researchers want—to be able to archive and share their research—and how copyright laws work. And they remind us that the open access movement must not ignore the underlying problem of over-broad copyright laws. Even with permissive open access policies in place, these inflexible and severe copyright penalties and takedown practices would still exist. The content industries have successfully spread these draconian copyright policies around the world—affecting scientists like Diego, who simply wish to pursue knowledge.

We Need Computer Crime Laws That Make Sense

Activist Aaron Swartz was worried about access to existing knowledge, and particularly the vast amount of work tied up in online repositories like JSTOR. Without paying a hefty fee, how can one access these databases of our collected knowledge? How can we run interesting textual analyses? Or identify trends in research, funding, and culture over the years?

Around January of 2011, Aaron downloaded millions of scholarly files from JSTOR. Soon after, he was slammed by an intense prosecution campaign wielding an outdated, much-reviled computer crime law—the Computer Fraud and Abuse Act. Were his political activism done in the physical world, he may have faced lighter penalties akin to trespassing. But simply because his actions involved a computer, he found himself staring at a much more severe punishment.

The open access movement cannot ignore these issues. These cases aren't peripheral to the cause; they're an important part of it. In our push for open access, we must recognize that those pushing for institutional policies are exhibiting one form of activism. There are many other open access activists who are exposing kindred faults in the system, and we must recognize and fix those too.

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.

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