Promoting Open and Copyright Reform: Both/And, not Either/Or

How to address the challenge of the critical under-supply of digital content, in an accessible, affordable way, in order to support education, research and cultural participation? This question is at the heart of the Knowledge Rights 21 Programme.

Of course, this is not a new issue – digital technologies have been around for decades, and with it, a community of experts and activists focused on solving the issue.

There are arguably two main areas of focus for this work. On the one hand, there is the promotion of open access and broader open licensing. This underlines the possibility to sidestep the challenges created by extensive exclusive rights by simply waiving (most of) these from the beginning and refusing to charge.

On the other hand, there is a drive for copyright reform, enabling libraries, schools, research centres and others to make effective use of works in their collections, in order to ensure that there is the meaningful possibility for everyone to access the information they need.

Yet discussions on these two areas often take place separately. This blog looks briefly at the case for remembering to think about the two together, but underlining the limits of each approach on its own.

Photo by Filip Kominik on Unsplash
Photo by Filip Kominik on Unsplash

Open without Copyright Reform?

What happens if we do pursue one and not the other?

A focus only on copyright reform will only get us so far. Improving exceptions and limitations does not necessarily solve the initial question of access. Individuals and libraries can only acquire a certain amount of material, and systems for sharing resources between institutions are rarely instantaneous.

In addition, and in the absence of an effort from WIPO to deliver truly international copyright reform, we are still likely to see differences between national regimes which make cross-border collaboration more difficult.

The goal of a world where money is not a barrier to accessing (scientific) knowledge can only be achieved through the spread of open licensing. This is why the Knowledge Rights 21 Programme focuses on two promising areas for promoting open access – through a secondary publishing right allowing authors to place their works on OA repositories, and promoting rights retention and open licensing.

Copyright Reform without Open?

However, a focus on open cannot provide solutions for materials that have already been published, and simply is not likely to be suitable for many types of publication, not least in the non-academic sector.

Even in the academic sector, the amount of money available to support the costs of the dissemination of research varies by country and by discipline, with ongoing work needed to ensure that researchers everywhere have meaningful opportunities to publish open access. While there are efforts to promote open eBooks, they remain a small part of total publication.  

In the ‘trade’ sector, there simply isn’t access (at least on any meaningful scale) to the resources that research funders and institutions put in to pay the salaries of researchers and the price of publication.

As such, we are still a long way off from universal open access for all new academic publications, not to mention those that have already been published.

Given this, it is essential for libraries to benefit from modern exceptions and limitations to copyright in order to be able to fulfil their function of acquiring and providing inclusive access to materials which would otherwise be out of reach for readers.

The KR21 Programme addresses these challenges through its focus on improved terms for the acquisition and lending of eBooks, on the impacts of contract terms and technological protection measures that prevent enjoyment of exceptions and limitations, and promoting open norms.

Of course, these two aspects can also come together, for example around questions of open educational resources (OER). OER creators often rely on exceptions and limitations to draw on existing materials, in order to ensure relevance and interest, but then openly licence their works. The result is a readier supply of relevant, quality materials to support education.

Elsewhere, there is a need to bear in mind these parallel strategies, ensuring that attention to one does not come at the cost of progress on the other. Any comprehensive approach to promoting access to content – in particular digital content – needs to include both.