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Let Canada Be First to Turn an Open Access Research Policy Into a Legal Right to Know

Canada’s three federal research funding agencies – the Canadian Institutes of Health ($1 billion annual budget in 2016-17), the Natural Sciences and Engineering Research Council of Canada ($1.1 billion), the Social Science and Humanities Research Council of Canada ($380 million) – instituted an intellectual property law exception in 2014. It effects the publication of research and scholarship resulting from grants which they have awarded. What began with CIHR in 2008, evolved six years later into Tri-Agency Policy on Open Access Policy on Publications. Under this policy “grant recipients are required to ensure that any peer-reviewed journal publications arising from Agency-supported research are freely accessible within 12 months of publication.”

I raise this policy because, what began a decade ago, has only grown in scope, in Canada and globally, suggesting open access is here to say. This seems worth considering in terms of its implications for the Canadian government’s current review and potential reform of the Copyright Act.

The first thing to note with Tri-Agency Policy is that it considerably abridges the author and publisher’s right to restrict access, limiting it to twelve months rather fifty years after the author’s death (whether the author retains the copyright or assigns it to the publisher, which is often a condition for publication in scholarly publishing). This is a radical turnaround, given that Canada, like other countries, had previously done nothing but extend the copyright term limit, from the original twenty-eight years, with a fourteen-year extension, of the first Copyright Act of 1875.

Canada is recognizing that people everywhere have a right to this body of knowledge that it differs significantly from their right to other intellectual property (which begins well after the author’s lifetime). It is recognized as more than a taxpayer’s national benefit (which was tried with Canadian free access to National Research Council journals earlier in the century). And while this right may see an artifact of the internet, I hold that efforts to extend access to such work are part of a historic struggle among those devoted to learning, which in the history of the West, date back to the book-sharing and -copying networks that operated within the nonproprietary realm of medieval monasticism.

Or so I discovered in the course of writing The Intellectual Properties of Learning: A Prehistory from Saint Jerome to John Locke (University of Chicago Press), published in December (after being initially announced in this blog, I must sheepishly add, a decade ago). What I came to see was that finding ways of improving access to and the use of learned works was the long-standing cause of institutions, endowments, translation movements, and print technologies. This culminates, in terms of the book’s narrative, with the early eighteenth-century origins of intellectual property law: “An Act for the Encouragement of Learning,” otherwise known as the Statute of Anne 1710, the first modern author-based copyright legislature.

With my shameless book pitch out of the way (and with an open access final draft of the book available here), let me suggest what the recognition of this right to knowledge might mean for copyright reform. Now that the scholarly and ultimately public value of having research and scholarship openly circulating from within a year of publication is being treated as a universal right, it raises a question about whether such a right should not be left up to the patchwork of funding agency and philanthropy policies. Wouldn’t the proper, democratic step be to legislate such a policy for all Canadian research and scholarship. After all, having access to some of this work immediately, some of it after twelve months, and the majority after its authors have shuffled off this mortal coil, well, that seems a human right badly realized, if not an outright danger in fields such as health.

A second element of reform may be the twelve-month embargo. Setting aside journal pricing controversies and discrepancies for the moment, it may be time for research libraries to assert their collective willingness to underwrite the costs of immediate and universal open access, for the same price as they are now paying for either twelve months or a lifetime-plus of exclusive journal access. Publishers can continue to be paid, perhaps through automated (and anonymized) tracking of usage and an updated version of the music industry’s mechanical licensing model, which involves tariffs certified by the Copyright Board of Canada.

Now, to move a government policy into a federal law is no small step, and all the more so as Canada would be the first among nations to modify its copyright law in this way. On the other hand, it becomes this country to take the lead in extending our right to this body of knowledge. Ensuring that this work is available to journalists, educators, healthcare providers, Wikipedia editors, and interested readers everywhere will serve as another check on the growing web of misinformation and disinformation that is increasingly undermining democratic life.

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