Open access explained

Open access (OA), in its simplest form, means unrestricted online access to research outputs. These outputs cover all forms of research including journal articles, conference papers, book chapters, monographs and more. In its wider sense any kind of digital content can be open access, from texts and data to software, audio, video and multi-media.

But what do we mean by unrestricted access?

Open v free

There is a common misconception that free access is open access. Much of the content of the internet is free to access – newspaper websites, YouTube videos, the BBC etc. However, whilst your access to this content is free, the publisher retains all the intellectual property rights to the content and controls what you can or can’t do with it. You can’t just copy or reuse content as you please. Clearly this kind of free access, while reserving all rights, is a perfectly acceptable publishing model, but it is not open access.

Complete open access allows free immediate access to, and unrestricted reuse of, a work. The author/creator agrees to make their work legally available for reuse, without permission or fees, for any purpose. Anyone may copy, distribute or reuse the work. But how do we know if an author/creator allows us to do this?

Creative Commons

Creative Commons is a non-profit organisation that was set up to enable the sharing and use of creativity and knowledge online. To do this it has created a set of copyright licences that provide author/creators with a simple, standardised way to give the public permission to share and use their work — on conditions of their choice. These range from the totally open-access Creative Commons Attribution Licence (CC BY 4.0) where the only condition is that you acknowledge the author/creator and original source, to the Creative Commons Attribution-Non Commercial-No Derivatives licence (CC BY-NC-ND 4.0) which still allows you to copy and redistribute the work but doesn’t allow commercial re-use or any derivative use.

Green and gold access

The two main routes to making research content open access are usually referred to as green and gold access.

Green access is where authors deposit a copy of their work on their personal website and/or in an open access repository. OpenDOAR, run by the University of Nottingham, provides a quality-assured listing of open access repositories around the world.

Gold access (sometimes referred to as “author pays”) is where the end user is not charged for the article/publication and/or the content becomes “open” after a defined embargo period, enabling a publisher to exploit the work for a subscription period.

The gold option is certainly the one favoured by most publishers as offering the most stable and sustainable business model.

Whilst these options provide extra flexibility, they can also add to the confusion as you encounter fully open access journals and hybrid journals – proprietary journals which also include an option for open access for individual articles.

Open access legal publications

There are a growing number of legal publications (mostly still University based) that have some form of open access. The Directory of Open Access Journals (DOAJ), for example, is an online directory that indexes and provides access to high quality, open access, peer-reviewed journals. It currently lists 197 Legal journals with nine listed as being published within the UK .

Similarly, global scientific and medical publisher Elsevier lists 23 legal titles that have “open access”. As previously mentioned, this does not necessarily mean the individual titles are open access (the Utrecht Journal of International & European Law is actually the only one to publish under a CC BY licence), merely that they allow open access article publishing, with the onus of prospective authors to decide whether or not they want to provide their articles open access or not, and also just how open they want to be.

Open law

A popular offshoot of the open access movement has been the open law movement. This can be traced back to 1992 with the creation of the Legal Information Institute (LII) by Tom Bruce and Peter Martin at Cornell Law School). They believed that access to both primary and secondary legal materials are essential to allow members of a society to know and understand the laws that govern them and to allow them to gain an understanding of what their legal rights are in any given situation.

The LII quickly grew into the Free Access to Law Movement (FALM), which has seen the formation of many subsequent Legal Information Institutes, such as the British and Irish Legal Information Institute (BAILII) in the UK. BAILII provides access to British, Irish and European Union primary legal materials, including legislation and directives, case transcripts and also the decisions from several legal tribunals.

For many years access to legislation and case law in the UK was impossible for the average member of the public as it was locked away in printed law reports and online subscription databases, such as Westlaw and Lexis Nexis.

BAILII changed this, providing access to court judgments from 1996 onwards, with some notable case additions prior to this date. Whilst this access is free, it is certainly not open access, with a number of constraints put on use of the site’s content.

In 1996 HMSO started publishing primary and secondary legislation online, “as published” – so only accurate as at the day in came into force; it wasn’t until 2006 when the UK Statutory Law Database launched that access to amended text became possible. Now renamed Legislation.gov.uk, it contains all legislation from 1988 to present, although in many cases the site still only has access to the original published (as enacted) versions of acts and not the fully revised versions. This is primarily due to the lack of resources – financial and human – to accomplish this task. BAILII is similarly always fighting against a lack of resources.

Copyright in UK legislation lies with the Crown (or HM Government), but it is now administered under the UK Open Government Licence which grants users “a worldwide, royalty-free, perpetual, non-exclusive licence to use the Information” (subject to some conditions and exemptions – mainly to do with other associated intellectual property rights). This means there is almost complete freedom to reuse the data from the legislation.gov.uk site.

Conclusion

It should be clear that “open access” is used more broadly than perhaps it should be to be truly accurate. Whilst the movement for open access and open law certainly has some momentum, the days of them both becoming the default position are still a long way off.

Internet for Lawyers Newsletter

Edited by Nick Holmes