Let Canada Be First to Turn an Open Access Research Policy Into a Legal Right to Know

• Author: John Willinsky
• Date: March 09, 2018

Canada’s three federal research funding agencies – the Canadian Institutes of Health ($1 billion annual budget in 2016-17), the Natural Sciences and Engineering Research Council of Canada ($1.1 billion), the Social Science and Humanities Research Council of Canada ($380 million) – instituted an intellectual property law exception in 2014. It effects the publication of research and scholarship resulting from grants which they have awarded. What began with CIHR in 2008, evolved six years later into Tri-Agency Policy on Open Access Policy on Publications. Under this policy “grant recipients are required to ensure that any peer-reviewed journal publications arising from Agency-supported research are freely accessible within 12 months of publication.”

I raise this policy because, what began a decade ago, has only grown in scope, in Canada and globally, suggesting open access is here to say. This seems worth considering in terms of its implications for the Canadian government’s current review and potential reform of the Copyright Act.

The first thing to note with Tri-Agency Policy is that it considerably abridges the author and publisher’s right to restrict access, limiting it to twelve months rather fifty years after the author’s death (whether the author retains the copyright or assigns it to the publisher, which is often a condition for publication in scholarly publishing). This is a radical turnaround, given that Canada, like other countries, had previously done nothing but extend the copyright term limit, from the original twenty-eight years, with a fourteen-year extension, of the first Copyright Act of 1875.

Canada is recognizing that people everywhere have a right to this body of knowledge that it differs significantly from their right to other intellectual property (which begins well after the author’s lifetime). It is recognized as more than a taxpayer’s national benefit (which was tried with Canadian free access to National Research Council journals earlier in the century). And while this right may see an artifact of the internet, I hold that efforts to extend access to such work are part of a historic struggle among those devoted to learning, which in the history of the West, date back to the book-sharing and -copying networks that operated within the nonproprietary realm of medieval monasticism.

Or so I discovered in the course of writing The Intellectual Properties of Learning: A Prehistory from Saint Jerome to John Locke (University of Chicago...