I am commenting only on the bearing of EC policy on one specific body of content: The 2.5 million articles per year published in the world’s 25,000 peer-reviewed research journals in all fields of science and scholarship.
The authors of all these articles neither receive nor seek royalty or fees from access-tolls to their users or their users’ institutions. These authors only seek that these research findings should be accessed and used as fully and widely and possible, to the benefit of research progress and applications, and hence to the benefit of the society that funds their research and their institutions.
Making this specific body of research accessible free for all on the Web (“Open Access”) will maximise its usage and impact. It does not require a major or even minor reform in copyright law. All it requires is that the authors of these 2.5 million annual peer-reviewed research articles make them open access by depositing them in their own institution’s/university’s Repository. Sixty-three percent of journals already formally endorse depositing the author’s final, revised, peer-reviewed draft in their institutional repository immediately upon acceptance for publication, and immediately making that deposited draft accessible free for all.
For that 63% of articles, it should be evident that no copyright reform whatsoever is needed. What is needed is that the authors’ institutions and funders mandate (require) that they deposit and make them Open Access immediately upon acceptance by those journals.
The remaining 37% of articles can also be deposited in the author’s institutional repository immediately upon acceptance for publication, but unless their publisher endorses making them immediately Open Access, the deposit has to be set initially as Closed Access (accessible only institution-internally, to the author and his employer).
It is here that legislation can help, although it is not certain that even that is necessary: A Europe-wide law requiring that publicly-funded research and research produced by employees of publicly funded universities must be made openly accessible will exert the requisite pressure on the remaining 37% journals so that they too should endorse that the deposited articles are immediately made Open Access rather than Closed Access.
Note that peer-reviewed research is fundamentally unlike books, textbooks, software, music, and videos. It is in its very essence author give-away content, written only to be used, applied and built-upon. Unlike the creators of the other kinds of content, all the authors of the annual 2.5 million peer-reviewed journal articles want them to be free to all would-be users.
Hence, whatever rationale there may be for changing copyright law for all the other kinds of digital content, in the case of the target content of the Open Access movement, no change is necessary other than a formal publisher endorsement of making the author’s final draft freely accessible online.
Free online access provides for the following forms of usage: Being able to find online, link, view online, download, store, print-off (for individual use) and data-mine. These uses all come automatically all come automatically with free online access. Open Access content is also harvested by search engines like google.
But there are further uses, over and above these, that some fields of research feel they need, including modification and republication. It is likely that free online access will moot the need for copyright modification to guarantee these further uses, but there is no harm in trying to stipulate them formally in advance, as long as it is not treated as a prerequisite for Open Access, of for Open Access Mandates.
ABSTRACT: Free online access (“Open Access,” OA) to all the articles published annually in the world’s 25,000 peer-reviewed journals , in all disciplines and all languages, is optimal and inevitable. It has, however, been delayed by misunderstandings about copyright. It has been wrongly thought that universities and research funding councils cannot mandate the immediate deposit of all their research article output in their OA repositories unless they can somehow change authors’ copyright transfer contracts first. Unless institutional consensus can be quickly and successfully reached on adopting an OA deposit mandate that requires the author to contractually reserve the right to make the article OA immediately, the adoption of OA mandates should not be weakened by copyright reservation clauses from which authors can opt out (as in the Harvard University mandate) or by allowing deposit itself to be delayed for an embargo period (as in the EU mandate). Deposit should in all cases be mandated to take place immediately upon acceptance for publication. Over 60% of journals already endorse making the deposit immediately Open Access. For the rest, the deposit can be Closed Access for the time being, disclosing only its bibliographic metadata. The repository’s semi-automatic “email eprint request” button can then allow users webwide to request, and authors to provide, an email eprint with just a few extra keystrokes for the Closed Access articles. This 60% OA and 40% “almost-OA” will fulfill worldwide research needs for now, faciilitate universal OA mandates, and usher in 100% OA soon thereafter, on the strength of OA itself and its manifest benefits alone. Copyright and publishing reform can then follow. Trying to make those reforms precede instead, as a contractual precondition, is both unnecessary and a great strategic mistake, delaying consensus on mandates or allowing delays or opt-outs, at a great continuing loss in research access, usage and impact.