Background and Context

In order for researchers, creators and inventors (and their commercial agents) to be rewarded for their work the law establishes rights to control intellectual products. One category of such rights is copyright. At its most basic level copyright states that a literary, dramatic, or musical work, or a film or sound recording cannot be reproduced or made available to the public (e.g. in a performance, broadcast or online)without the permission of the copyright owner, except in limited circumstances.

When accessing or downloading networked knowledge the consumer or researcher must be mindful of copyright law. The use of digital technology involves a process of reproduction. For example, the act of downloading or printing an article may be authorised if you have the permission of the copyright owner, or if your use comes within an exception like the fair dealing rules or one of the statutory licences provided for under the Copyright Act 1968 (Cth). In many cases, however, it may be unclear whether how you are dealing with the content is lawful.

Copyright law can pose a major obstacle to achieving a seamless model of open access. Extraordinary technical advances in our capacity to disseminate and share the results and outputs of publicly funded research have not always been matched by the required changes in legal and contractual arrangements.

Now a model has emerged to facilitate open access. This model aims to enable copyright owners to provide permission in advance so it can be relied on at the instant of downloading. At the same time, this permission would work to outline the conditions upon which the material may be used. The key issue for the future is to establish legal protocols or licences that simplify the accessing, downloading and further communication of publicly funded research.

This requires at least two steps. Firstly, it requires the development of generic nationally and internationally recognised protocols that may be employed/affixed by the copyright owner and that are easy for the user to understand, such as the Creative Commons licences originated at Stanford University (for which QUT is the lead agency in Australia). Secondly, it requires content that can be accessed. In order to achieve seamless download and communication of research in an open access model we need copyright owners (in some cases this may be the researchers and in others the publishers) who are willing or required as part of their publicly funded grant to allow open access to their output.

Not all copyright material will, or should, be available for open access; however, we believe that copyright material that has been generated by public funding has a democratic heritage and as such should be open access in some broad or limited way.

Providing seamless or open access to publicly funded research does not mean that copyright as a concept is rejected or made redundant. Open access can be obtained by copyright owners relinquishing their rights to the public (the legal process for this is a little unclear) but more commonly it will be achieved by the owners retaining copyright and merely providing conditions of use that facilitate open access. In fact, in most instances open access models rely on copyright to leverage open access downstream. For instance, you can write an article and provide access by posting it on your website and as an E-Print within the QUT repository, while still retaining copyright and simply conditioning further reproduction or communication in a manner that provides for continuing open access.

Our immediate challenge is to understand how these new approaches to providing access to copyright materials can be used within Australian research, education and legal systems. We believe copyright can be used as a tool to build open access as well as allow commercial rewards. The key is to re-think how copyright might facilitate both objectives. Domestically and internationally such a re-think is now being demanded.