I have championed ways of increasing the public availability of research and scholarship in these Slaw columns for well over a decade under a variety of names, from open access to the catchy right to research (R2R). I picked up R2R, as I’ve noted, from the inspiring Program on Information Justice and Intellectual Property at the American University Washington College of Law in an initiative led by Sean Flynn. What I’ve now realized about R2R is that it can be read in two historically significant ways, with the difference between them neatly capturing what sets Prof Flynn’s and my current intellectual property interests apart, while bringing home, I believe, the complementarity of our positions.
The two readings work like this: In one sense, what is at issue is the right to [do] research. Copyright recognized that right during the photocopying era with an exception to the law that still allows those engaged in acts of research to make a copy of a relevant article, if it does not affect the market for that article, as well respecting other limiting factors.
The second reading of R2R is concerned with a right to [access] research. It relies on the nature of the work rather than the intent of the right’s holder. It follows from the distinct institutional and economic order that has long fostered research in the service of humankind. The access right is not an exception to copyright. It serves the very purpose of research by encouraging learning and promoting the progress of science.
The two senses of the right to research are certainly linked. The act of research relies on access to research, and this access can be seen as itself an act of research. Yet there are distinctions to be made, both historically and in the current era. For example, I’ve learned that the work of Aristotle and Greek science, more broadly, were largely unavailable in Europe’s early medieval era. These works only became available in Latin – along with great Islamic commentaries, extensions, and original work in the sciences – through a twelfth- and thirteenth-century translation movement from Arabic to Latin that took place in various Christian-Islamic-Jewish contact points in the Mediterranean region. Access to this literature contributed, I’ve come to believe, to the formation of European universities (see here), even as Aristotelian scholarship in these early universities faced censure from the Church. Still, the right to do the research obviously won out, evolving, by the twentieth century, into the concept of academic freedom.
Jump to today. In the digital era, the right to do research in question involves the promising work being done with text and data mining (TDM) massive corpuses of research, news, law, medical records, and other data. Where Thomas Aquinas did much to bring Aristotle into the graces of Catholic theology, the right to research movement, coordinated by Prof Flynn, seeks to bring TDM under the current IP regimes’ designation of limitations and exceptions in copyright laws around the world.
While Prof Flynn and his coauthors acknowledge that the “rights to conduct and receive or access research” are similarly rooted in “freedom of information and the public’s right to information” (here), TDM is decidedly a right to conduct research rather than to access it. TDM proves an effective copyright exception, they point out, because it does not “compromise the core interests of exclusive rights” in the property at issue. Researchers engaged in TDM “do not communicate [the] original expression to the public,” they do “not harm markets for copyright-protected subject matter.” This, in itself, smooths the path to incorporating TDM within existing copyright limitations and exceptions that are in most jurisdictions already supportive of a right to [do] research.
On the other hand, there is no such easy starting point for the right to access research in copyright law. After more than two decades, efforts to bring about open access have proven partial, incomplete, embargoed and imperfect, as well as increasingly expensive.This results, in large part, from having to work around a law that is no longer equipped to encourage or promote what is currently and widely regarded as the best model for the circulation of science in the digital era.
Thus, this right to access research calls for a more radical legal remedy, one that begins with research’s distinctive economic and institutional structure. I am proposing that “research publications” need to be added to the categories of work that are identified and given special treatment in copyright law. Research publications will be subject to a form of statutory licensing that requires open access on publication for which its publishers are to be fairly compensated by the publications’ institutional users and funders. The actual workings of such a license can follow the long-standing statutory licensing of the music industry, which offers processes for deciding fair compensation and is subject to reciprocal international accords that would, in this case, enable a global distribution of research under these terms.
While I’ve worked out the details of the proposal in this forthcoming, open access book, Copyright’s Broken Promise: How to Restore the Law’s Ability to Promote the Progress of Science, to be released in December, what I want to conclude with here is that while there is indeed a tight complementarity to these two rights to research, their close association should not mask the extent to which different sorts of legal effort and innovation are needed on both fronts, if we are to realize a greater part of the digital era’s promise.