Rami Olwan

All About CyberLaw, Copyright and Developing Countries

A Review of the Theory and Practice of Open Access to Knowledge

Introduction

The internet has revolutionized the way humans disseminate ideas, share knowledge and build upon existing scholarship of thoughts. The internet empowers people to publish their own opinions on a range of issues that, if given the full potential will definitely have a transformative effect on our society and economy.

Open Source Software, Open Access Publication, Open Access Law, Open Health and Creative Commons threaten in one way or another businesses that want to get the maximum financial gain of the intellectual creative work they are controlling or holding. Their aim is basically to replace the traditional proprietary models, enrich the public sphere and replace mass business culture with folk culture that everyone is free to use and build upon. The roots of these movements are not new and there have been extensive discussion of each one of them. They all came as result of certain problems either from software, publications, licensing, costs, intellectual property laws, health etc.

While these movements share a common general goal, they have different specific results in connection with the problems they are facing, and they have different approaches of how to solve these problems. The most important thing to answer is: whether these different movements have achieved the goals they have set out for themselves or at least changed our traditional look to how humans should disseminate, share information and build upon existing work? To what extent this may result in advancement of the human race? The answer to these questions is not easy, but some of the research available over the internet could give some insights. I will provide below my own assessments of some of them.

Assessment

I have really enjoyed the reading of the research on Open Source Software (OSS) by Jyh-An Lee entitled “New Perspectives on Public Policy Goods Production: Policy Implications of Open Source Software”. What is fascinating about it is that he explains in simple non- technical terms the concept of OSS, the different licenses, and how governments worldwide are supporting the movement. He examines in different occasions the legal, political and economic issues related to the OSS in the public and private sector as well. There is real misunderstanding from certain governments particularly developing countries that OSS should be favored over proprietary software. Lee tries to explain throughout his article that this approach is naïve, and governments should do their homework before switching to OSS. They should evaluate all conditions and circumstances including technical concerns, costs, network effect, competition, security, usability, and availability.

The thing I did not like about his research is that there is no concentration on the legal issues surrounding OSS. Lee did not deal in efficient manner with the legal issues and gave it a minor attention in this legal non-technical paper. What is the legal validity of free and OSS in civil law and common law countries? How governments can go about in determining that? What about consumer protection? What kind of recommendation can be given to governments to mitigate the risks associated with the use of OSS? Lee provides government and developing countries which are considering adopting OSS with unclear picture and scattered ideas that they cannot benefit from.

Elkin- Koren’s paper “Creative Commons: A Skeptical View of A Worthy Pursuit,” in P. Bernt Hugenholtz & Lucie Guibault, eds.,The Future of the Public Domain, (Kluwer, 2006) about Creative Commons is interesting since it tries to explore from the legal prospective the goals of Creative Commons (CC) and the mechanisms (licenses) that it rely upon it.

Koren correctly mentioned that the different licenses offered by CC to creators of original work to choose from may undermine the main goal of the organization and make these licenses complex to understand and incompatible with one another. I was hoping to see in Koren’s research after the criticism some kind of fresh ideas of how CC should go about in correcting its flaws and fixing its own problems. I suspect this is a difficult task that Korean herself and many others cannot envisage now.

Also, there may be a need not to correct the flaws of the current CC model, but to build a different model from the existing one. How this model should be? More research should be done in this area after evaluating what CC have achieved so far on the internet commons.

Science Commons’ Scholar’s Copyright Project provides a new prospective when looking at open access goals of either open access journal or self-achieving. What is novel about this program that is does not support either one approach, but rather concentrate on the technical and legal mechanisms that will allow us to reach that. The approach is unique, but some advocates of software freedom believe there are certain problems with the CC Attribution License that was chosen to make this program effective. This is one of the reasons that CC has introduced recently version 3.0 of the license.

The motive behind writing Dan Hunter’s paper entitled “Walled Gardens” on Open Access Publication was his personal experience with California Law Review that did not accept publication of his article in its draft format with an online free publicly accessible journal. Once again the article shows how academic institutions and scholarly publications are controlled by the limited interests of commercial databases owners who want the greatest possible economic returns even from academic research and scholarship. Hunter main argument is to provide open access legal research by all law schools and that is totally in consistent with their educational mission and advancement of legal scholarship. I think that idea is more theoretical in nature and cannot be implemented now especially when Hunter showed that the top American law schools are connected in one way or another with the owners of these databases. Scholars are not controlling their copyrights and very few rights if any remain in the hands of authors. I also think that results of the survey should be re-examined and this is because the article was written in 2004 and it would be interesting to know the exact situation now, although I suspect that not much has changed. Also, Hunter left the matter for the law schools to decide in their conferences, but did not provide us with a clear idea of what they should do together as legal educational institutions against the self-commercial interests of databases owners?

As for the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities, I noticed that the definition of open access is not clear. What exactly is considered to be a comprehensive source of human knowledge? Who is going to approve that? Who are the scientific community? How they are appointed? What their qualification and background? How can the web be sustainable, interactive and transparent? The most troubling aspect I have found in the end of the declaration it mentioned that they are still exploring future solutions for legal and financial access matters. How and when this will be done?

Although the definition of the Budapest Open Access Initiative for open access is clearer, I doubt the methods by which OSI wants to achieve open access to scholarly journals especially providing adequate funds to attain self- archiving and open access-journals.

As for the work of the Canadian Institutes of Health Research that is offering valuable health research online mentioned in their “Policy on Access to Health Research,”. I think the availability of this kind of research is critical for the well being of all humans, especially for developing and least developing countries that neither have the resources nor the capabilities to conduct such research. The initiative of CIHR will put Canada on the world map compared to other US and European organizations involved in open health research. What is troubling about their policy that it does not cover the research conducted prior to January 1, 2008 and this will mean that important health research will be excluded from being available online. Another criticism is that the policy does only cover certain types of work and some work including book chapters and reports are not within. If their aim is to offer worldwide open accessibility to Canadian health research why we should open it for certain work and close on others?

Conclusion

From the research I have mentioned and my observation to the different movements and the criticism toward them, I can say in simple terms that they try to bring to our attention another perspective on the way humans must distribute, share and reuse creative work.

They use the internet as the backbone and the pushing power to make the change they perceive in software use, scientific, legal publications and health.

The research mentioned above examines the basic ideas of each movement, and their prospective on how to deal with information. Although we have been provided with a fair theoretical background to the different movements and their main core ideas, much is still unclear, particularly on how to make these ideas applicable in practice. Furthermore, I even noticed that in some instances the ideas of the movements are general in nature and they are no concrete substance in them.

This is in my opinion is due to the fact that movements implementation techniques and strategies are constantly developing, and there is no full agreements on how they should achieve their objectives.

I was hoping that by reading about the different movements to gain more understanding of each one of them, and to be able to determine where this will lead us.

To be honest, I became more skeptical of their approach, and the methods they are trying to follow. This may lead to severe criticism of being with no clear direction and a waste of undefined separate efforts that will not result to the ultimate goal of human welfare and economic development. So, what must be the solution then?  Will there be a need to create an umbrella organization to coordinate, unify all these efforts and oversee open access movements or must be there another solution? I think we have to determine that in the near future depending on what we can achieve in the few years to come.

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