Bingo! Ohhh the funny things they say!

A few things you’ll likely hear opponents of open science and copyright reform for research

Knowledge Rights 21 is about working towards a Europe where researchers, innovators, educators, learners and readers in general can fully enjoy the possibilities created by digital technologies to access research, education and culture.

It is also about addressing the deregulation by stealth that has emerged thanks to the shift from analogue to digital formats, which give rightholders unprecedented levels of monopoly control over what we read and how.

Tackling this – maximising the positives and dealing with the negatives – requires a combined approach, with both capacity and confidence among institutions and their users, and legislative change that offers the necessary guarantees.

Of course, any legislative change opens up the possibility of opposition, and copyright and open access certainly are no exception. However, those trying to dilute or derail change often rely on a similar set of arguments, all of which can be countered.

We’re therefore happy to offer you a bingo card of these arguments, and an idea of how you can respond:

 1. Everything is fine/licensing is working: a very common argument is to challenge the idea that change is needed at all. Of course from the point of view of opponents of change, having the power to decide who can carry out research, at what price, when, where and under what conditions suits them fine. However, the case for change within the research community is overwhelming, given the billions spent each year on publicly funded research, and the views of the community itself according to upcoming research commissioned by the European Commission.

2. There may be dramatic and unexpected consequences: a frequent tactic is to suggest that reform is somehow dangerous or highly risky. From likening text and data mining to digging through toxic waste, to threats of biblical plagues (sometimes hilariously backed up by photos of toads, as in a recent EU workshop), opponents will try to create doubt. These arguments should simply be called out for what they are – hysterical fear mongering. Again refer to the huge public interest in ensuring the billions allocated to research are well spent and can effectively deliver scientific and technological real-world change through knowledge transfer, public-private partnerships etc.

3. You just want to close down publishers: a regular claim is that the goal of those supporting open science and reform is purely to destroy publishers. This is a deliberate misrepresentation – what we are opposed to is business models in publishing which use restrictions on access in order to maximise profits. Many publishers are showing that open science and sustainability can fit together

4. It’s against the three-step test/international law: when trying to scare lawmakers, a tried and tested tactic is to create the fear that promoting reform will somehow expose them to international sanctions. This is based on misunderstanding of international law, which not only already accommodates more flexible approaches to copyright (notably for research) without issue, as well as the fact that the public funding of – and public interest in – access to research represents a major argument against it not being unreasonable to provide open access.

5. Isn’t this just a question of better funding for libraries and research?: it would of course be welcome for universities, research institutions and their libraries to benefit from significantly greater funding. However, even a hugely generous budget is not a reason to spend it inefficiently! Ensuring that laws and regulations are supportive of research is only coherent with the tens of billions of taxpayer money spent on the sector at the European and national level.

6. This is all about supporting Google: a familiar claim at the time of the Directive on Copyright in the Digital Single Market was that anyone not arguing for more restrictive copyright rules was somehow in the pocket of big tech. This argument is of course particularly dishonest, and implicitly questions the credibility and integrity of universities, libraries, researchers and teachers.

7. Open access mandates infringe academic freedom: there have been particular efforts by opponents of open science to claim that obligations to publish open access violate a claimed freedom to decide how and where to publish work. This is firstly an odd reading of the concept of academic freedom (which is more about choice of research subjects and how to carry out research), and also disregards the public interest in accessing work that they have funded and paid for. Incidentally, of course, the sorts of privacy-invading tools used by rightholders to monitor how their works are used arguably represent a much greater threat.

8. This is harmful to balanced copyright system: in discussions focused on copyright, we often hear about the importance of balance, and how important it is to see copyright protection as an aim in itself. This seems perverse – copyright is a means, not an end.  It makes far more sense for Europe to prioritise the objectives it seeks to achieve, such as a high-performing research ecosystem contributing to competitiveness and addressing the key scientific, environmental and economic challenges we face today. Copyright needs to serve this goal, not the other way around.

9. Without publishers, there is no version of record/quality: a rare positive argument in efforts to delay or block open science and copyright reform is an appeal to the value that publishers add in the scholarly communication chain. And clearly, it is important to have an infrastructure for organising peer review, presenting outputs effectively, and supporting dissemination. The key question – as already hinted above – is around whether this is best done by proprietary publishing businesses, or one of the wide variety of other models which are managing to deliver the same services without restricting access. This is why European funders etc. support Diamond Open Access.

10. There is a risk of legal uncertainty: a favourite claim is that any reform will lead to a lack of clarity or comfort in working with copyrighted content. Clearly, any change requires adaptation, but this should not be a reason to stop measures that would bring long-term gains. A more pernicious version of this argument is that legislation could be subject to legal challenge in courts (an argument seen in South Africa recently for example), which should be called out for what it is –  a threat to democratic law-making.

11. This is about getting stuff for free/legitimating piracy: an old argument used to discredit those calling for reform is the suggestion that they don’t want to pay for content. This is a deliberate misrepresentation of the arguments. Universities across Europe spend in total billions on content each year in order that they can use it.

On the contrary, it is the proprietary publishers who retain rights for articles and books from researchers and are given no compensation for this who are free-riding (see the Bonus Point below).

12. Flexible copyright exceptions and open norms are bad for business: in Europe there is a growing call for open and flexible exceptions that support innovation, R&D and education. European rightsholders say that flexibility in copyright law creates uncertainty and is bad for innovation. The facts however speak for themselves given the vibrant technology and research environment that exists in many of the countries that have adopted open norms – for example the US, Japan, Singapore, South Korea, Taiwan, Israel etc. (See this KR21 study on copyright and open norms in 7 jurisdictions)

13. BONUS POINT – unexpected faces: a particular trend that is visible is the coordination amongst different actors engaged in opposing reform. The most obvious example at the global level was the appearance of Caterpillar (yes that’s right the construction and mining equipment company) and the Motion Picture Association in trying to block the Marrakesh Treaty (an instrument focused entirely on books). We have to expect a similar cross-sectoral mobilisation around efforts to promote open science and copyright reform for research.

If this is how opponents of change think policy debates should be undertaken leave it to them – rise above it. For advocates, the most important thing is simply to underline how odd this sort of mobilisation is, and underline that decisions about research should be made by those involved in it.

14. BONUS POINT – eye-rolling outrageous claims: when things get tough rightsholders can make extraordinary claims. At a recent EU workshop the introduction of a secondary publishing right was equated by one rightsholder with “Soviet Communism”. In 2012 because the British Library supported digital preservation of sound and film, orphan works and text and data mining it was accused of “tawdry theft” by the then head of the UK Publishers Association.

We hope you like our attempt to list some of the most obvious elements of the rightsholder playbook when it comes to opposing Open Science. Be prepared to counter what you hear politely and firmly.

When you hear one of these arguments remember to cross it off on your score card and please please please do shout “Bingo!” – just reserve it for after the meeting!

15 March 2024