Study On Legal Issues On Open Access To Academic Information In The Context Of Copyright Law

Copyright is monopoly right conferred on right holders by copyright law.Copyright is of exclusivity.And intellectual products are public goods,which are non-rivalrous and non-exclusive.As the protection of copyright law,intellectual products are attached to private rights.At the same time intellectual products are of characteristics of private rights.In other words,intellectual products are not only regarded to private interest,but also in related to public interest.Therefore the balance of interests is fundamental to the intellectual property law.Undoubtedly,the exercise of exclusive rights by the right holders will influence the access and use to intellectual products.In the academic publishing market,the publishers always require author to transfer copyright or authorizes exclusive license to control the distribution,use and communicate works to the public.Since 1970 the publishers of academic periodical substantively raised the price,took technological measures to restrict the access to electronic periodical and caused academic periodical crisis.The private interest and public interest are imbalance.In this context,open access turns up.In 2001 the"Budapest Open Access Initiative" firstly defined open access.In 2003 both the"Bethesda Statement on Open Access Publishing" and "Berlin Declaration on Open Access to Knowledge in the Science and Humanities" provided two conditions of open access.All in all open access is in order to promote "barrier-free" access to knowledge.Open access is a new model of academic information dissemination and a new way of digital publishing.Open access includes two ways such as self-archive(green road to open access)and open access journals(golden road to open access).Open access is different from traditional academic information dissemination and academic publishing in way of information dissemination,model of payment,freedom of access and use of information.Because of these aspects open access can promote universe access to academic information,free use,extensive dissemination,and facilitate the balance of private interest and public interest.Furthermore open access is of adequate justifications.Specifically open access is the substance of freedom of information,requirement of information fairness,essential characteristics of public goods,guarantee of public interest,necessity of building the inclusive information society and the needs of sustainable development of knowledge economy.Open access does not deny or eliminate the protection of copyright law.In contrast copyright protection is the basis of open access.Whereas copyright protection restrict open access to some extent.Open access shall be authorized by the right holders.That is to say the right holders authorize general users to take part in certain activities that controlled by exclusive rights.If the right holders refuse to authorize,open access will be restricted in fact.Based on this fact,several public bodies of different countries all enforced mandatory open access policies.These public bodies require public-funded researchers provide open access to final version of their published works.However when the right holders transferred copyright or authorized exclusive license to the academic publishers,open access is up to the academic publishers,not the authors.And authors may not be the right holders.That means different ownership of copyright somehow influences open access.In short mandatory open access policy can not resolve the problem that open access may be restricted by exclusive rights.International intellectual property treaties on copyright protection and domestic copyright law of member states or contracting parties are either.Open access is not limitations or exceptions to the copyright,not conform to the "three-step test".To sum up,either mandatory open access policies or provisions of international intellectual property treaties on copyright protection and domestic copyright law can not solve the problem that open access may be limited by exclusive rights.Meanwhile as the new model of academic information dissemination and digital publishing,open access requires new way of copyright license.Mandatory golden open access policies confine the exercise of the right of publication.Consequently analysis on copyright issues on open access shall focus on both the deficiencies of copyright law and challenges that open access brings to copyright law.The same to the establishment and improvement of copyright rules.Besides that the establishment and improvement of certain copyright rules shall be subjected to the principle of balance of interests.Because the establishment and improvement of copyright rules contain multiple subjects,diflferent interests and distribution of rights,obligations.To promote open access,Spain,Italy,Germany,Netherlands,United States,Argentina,Peru and Europe Union all adopted provisions regarding open access through legislation or amendment separately.The related law of Spain,United States,Argentina,Peru and Europe Union all provide "mandatory open access "provision,while the related law of Italy,Germany and Netherlands all provide"secondary publication right" provision.Compared with publication right,the application of "secondary publication right" shall be consisted with certain conditions,the scope of application is also limited.In comparison with "mandatory open access "provision,the "secondary publication right" provision can not only resolve the problem that open access restricted by exclusive rights or different ownership of copyright,but also consists with "three-step test".By comparison the"secondary publication right" provision in the copyright law of Germany is more concrete,explicit and effective.It should be noted that secondary publication of the works does not mean license of the works.Use of open access works must be permitted by the right holders.However current copyright license models are not meet the requirements of open access.Creative Commons intends to share works,which is identical with open access.Moreover Creative Commons can fulfill the needs of open access.There are six types of Creative Commons License.The right holder can choose one type of Creative Commons License.It is obvious that rights and obligations of licensees are different according to different types of Creative Commons License,also the use scope.It is clear that if the licensees exceeded the scope of license or violated the terms of license contract,the licensees may infringe copyright.Whether the licensee afford liability of copyright infringement or not should be analyzed case by case.Furthermore regarding the limitation to the right of publication caused by mandatory golden open access policy,copyright law should provide right of publication,such as the copyright law of Japan and Korea.Without doubt the right of publication is useful to protect the freedom of publication.In conclusion open access shall be promoted by copyright law,whereas current copyright law is insufficient.Consequently the copyright law should provide secondary publication right and the right of publication provisions.As the license,the right holders should adopt Creative Commons License.The copyright law of China can not meet the needs of open access either.To be specific,the limitations and exceptions of copyright do not include open access,the current license models can not fulfill the requirements of open access,the exclusive publication right and the publisher right are not the right of publication which can not protect the freedom of publication,and can not balance the interests between right holders and users,private interest and public interest.Therefore to promote open access,the copyright law of China should provide secondary publication right and the right of publication by the chance of the third amendment to copyright law of China subjected to the principle of balance of interests.And the secondary publication right provision should reference to the copyright law of Germany,the right of publication provision should reference to the copyright law of Japan and the copyright law of South Korea.