Happy international open access week! Prof Bernt Hugenholtz wrote on the Kluwer Copyright Blog yesterday about the European Federation of Academies of Sciences and Humanities (ALLEA) statements (2018 | 2018 | (2022 pdf)) in support of secondary publication rights for scholarly articles. I am a principal investigator on a research group that has recently proposed some draft legislation to achieve this end at Irish law.

The research group is called SCOIR (Secondary rights, Copyright, Open access, Institutional policies, and Rights retention), and we are grateful to the National Open Research Forum (NORF) and Knowledge Rights 21 for funding. “Scoir” is an Irish word for “unharness”, and this project aims to unharness the power of open research, consistently with national and EU policy. One of the ways in which we hope to vindicate research outputs, and achieve the goals of Secondary Publishing Rights and Rights Retention in Ireland, is by means of a draft Copyright and Related Rights (Research Outputs and Open Access) Bill 2024 (the current version of the draft Bill is here and here (both pdf downloads)).

The aim of this draft Bill is to underpin and vindicate the rights of researchers and their employers and funders to publish publicly-funded research outputs on open access platforms. This is often cast in the language of a secondary publishing right and/or of a retained right. The approach in the short draft Bill is slightly different. It does not propose secondary publishing rights or retained rights in those terms. This could unravel existing carefully calibrated copyright balances. Instead, the Bill builds on distinctions and definitions in existing legislation (especially the Copyright and Related Rights Act, 2000 CRRA) to provide an obligation on authors’ employers, and an entitlement for authors and funders, to make research outputs available to the public by means of an open repository. This short Bill tries to avoid too much detail and technicality, the better to understand and adopt the solutions proposed here. In this way, research outputs are vindicated, and the goals of secondary publishing rights and rights retention are achieved in Ireland, without disturbing the balances in existing copyright legislation.

Section 1, on short title and commencement, is a standard clause. Section 2, on definitions, integrates this Bill with previous legislation, and then provides additional definitions necessary for the Bill itself. Section 3 is boilerplate concerning regulations and orders made pursuant to the Act. Section 4 is the key provision of the Bill. Section 4(1) carefully draws the line between this Bill and CRRA. Section 4(2)(a) provides that

In the case of a research output that is publicly funded in whole or in part, the employer of the author of the research output shall make or cause to make the research output available to the public by means of an open repository.

The whole of the Bill is constructed upon this provision; it provides for an obligation on employers of authors to make publicly funded research outputs available to the public by means of an open repository. This effectively requires research institutions to provide a workflow by which their researchers can make their outputs available on open access. The remainder of section 4(2) builds upon this. So, paragraph (b) covers employers of joint authors, and paragraph (c) covers (joint-)authors and funders. And in the case of works other than those that must be made available pursuant to paragraph (a), paragraph (d) says that they may be made available on foot of the paragraph (a) workflow. Section 4(3) goes on to provide that such research outputs and other works must be made available pursuant to a suitable open public licence, which (after a little legislative stroll), where possible and appropriate, will usually be a Creative Commons licence.

The elements of section 4(2)(a) are defined in section 2. So, for example, an “open repository” is defined as “a sustainable, trusted, online storage and retrieval platform where research outputs and other works are stored and preserved, made available to the public without charge”. And a “research output” is a composite of the definition of “research” in section 2 of the Research and Innovation Act 2024, and a capacious definition of “outputs” in the Bill. So, “research” means

creative and systematic work in any discipline that is undertaken in order to increase the stock of knowledge (including knowledge of humankind, culture and society) and to devise new applications of available knowledge;

And “outputs” includes works that are

(a) produced in academic, educational, innovation, intellectual, research, scholarly, scientific, technical, or other similar, contexts, and
(b) intended by their author or joint authors primarily to further such purposes or interests;

The definition of “output” here builds, in two ways, upon the CRRA definition of “work”. First, on the one hand, it defines the context in which the work is produced. This enables appropriate non-traditional research outputs to be covered by the Bill. Second, on the other hand, outputs that are not intended primarily to be research outputs are expressly excluded from the Bill.

A key concept in copyright, and in this Bill, is the “author” of the relevant work. Section 21 CRRA provides for interpretation of author for the purposes of copyright, and that definition is adopted in this Bill. Section 22 CRRA provides for “works of joint authorship”, and that concept too is adopted in this Bill. Section 23 CRRA provides for first ownership of copyright, and this Bill does not amend or affect that in any way. Hence, this Bill builds on the distinction between author and first owner of copyright inherent in sections 21 and 22 CRRA, on the one hand, and section 23 CRRA, on the other; it utilizes the former without disturbing the latter.

Section 6 of Bill envisages that compliance mechanisms will be available consistently with the Higher Education Authority Act 2022 and the Research and Innovation Act 2024. And section 7 permits enforcement by means of the Ombudsman Act, 1980.

Building on the ALLEA statements, Hugenholtz identifies the necessary contours of legislation in this area. First, the subject matter should be as wide possible. In the Bill, the broad definitions of “research” and “outputs” above certainly meet this contour. Second, there should be no embargo on this open access publication of research outputs. The current draft of the Bill doesn’t enable embargoes, and the next draft will require that such outputs are published “as soon as possible”. Third, authors should be permitted to publish their research in a variety of suitable fora that do not directly compete with the original publisher. There is nothing in the current draft of the Bill that restricts that, and the next draft will expressly permit wide publication (subject to the Berne 3-step test, to accommodate publishers’ legitimate interests). Fourth, open access publication of research outputs should apply regardless of the copyright ownership of the publication, or of any contractual restriction in the publishing agreement. The Bill is careful not trench upon copyright, and it specifically provides in section 4(1)(d), that, where “an act is required or permitted under this Act, any term or condition in any agreement which purports to prohibit, exclude or restrict that act shall be void”.

Finally, this is a draft, and only a draft. It contains ideas and principles to achieve the goal of underpinning and vindicating the rights of researchers and their employers and funders to publish publicly-funded research outputs on open access platforms. It is intended for discussion, and it will doubtless have to be edited, amended, added to, subtracted from, corrected, revised, or tweaked. Any and all comments are encouraged and welcomed.