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Open access

Open access to publicly funded research

Many of the world’s democracies are moving towards a system of open access to publicly funded research and science. The term open access is a collective term that includes open access to research data and scientific publications from publicly funded research.

The Swedish Research Council (VR) and the Royal Library (KB) are tasked with coordinating Sweden’s move towards an open system for science with regard to research data and research results. Naturally, open access to research data and results must take place within the framework of current legislation, including with regard to GDPR, the Public Access to Information and Secrecy Act and copyright rules.

The new system of open access does not mean that there will be changes to the copyright protection rules. However, the new system will probably mean that agreements on the transfer of usage rights will look different. One of the preconditions for obtaining public research funding will also probably be more far-reaching when it comes to the transfer of the right of use, namely a requirement for far-reaching open access. However, there are no signs that copyright and the specific teachers’ copyright exemption will be weakened as a result of open access.

Since freedom of contract exists with regard to copyright holders’ transfer of the right to use material, it cannot be said that financiers' requirements for open access and links to certain licences are contrary to copyright rules. It is simply up to each copyright holder to determine whether they wish to accept the requirements for the receipt of public research funding or not, (although we realise that it is not exactly perceived as voluntary if researchers need public funding for their research).

In its recommendations, the Swedish Research Council states that research data is to be published openly on the internet within a reasonable time after the research results have been published, as long as doing so does not contravene current legislation. The Research Council also writes that not all data produced in research can be fully openly available. Some data, for example, is covered by rules on confidentiality, personal data protection and copyright. The Council emphasises that open access is only possible where there are no rules that prevent the information from being made available. The principle in this context is “as open as possible and as limited as necessary.”

Fundamental to all research conducted in Sweden is the principle of freedom of research. Freedom of research is a constitutionally protected right that is expressed in more detail in Chapter 1. Section 6 of the Swedish Higher Education Act, which states that research problems may be freely chosen, research methods may be freely developed and research results may be freely published. Copyright, i.e. the right of authors, artists and photographers to their works, is also a constitutionally protected right that is regulated in more detail in the Copyright to Literary and Artistic Works Act, more commonly known as the Copyright Protection Act.

Several higher education institutions have adopted or intend to adopt guidelines for handling research data, with rules for how research data should be handled. This is probably a consequence of the Swedish Research Council’s requirement that those who receive grants from the Council are to have a data management plan. For the trade unions, the matter often comes up when a higher education institution calls for a co-determination negotiation with local trade unions on proposed guidelines.

It is often stated that the purpose of guidelines from a higher education institution is that the institution wants to create rules and guidelines for handling and making research results and research data available based on current regulations, the EU data protection regulation (GDPR) and requirements from research funders. In guidelines of this kind, employed researchers are granted the copyright to research results that they have produced in some cases, but in other cases not. It should be emphasised that a guideline is a unilateral employer document that does not infringe on the rights of individuals, e.g. copyright protection.

A condition for receiving a grant from the Swedish Research Council is the requirement that research articles are published so that everyone can read them free of charge on the internet. When following up its grants, the Council only approves articles that have been published in accordance with the requirements for open access.

Research results can be made openly available in several different ways, but in general this means that the author gives everyone the right to read, download, copy and distribute their publication on the internet. However, this does not mean that someone else may distort the work and the copyright holder’s name must be stated clearly when the work is reused.

Some research data may not be published with open access for legal or ethical reasons, (for example when the data are covered by confidentiality rules, contain personal data, include copyrighted content etc.).

State sector higher education institutions are covered by the principle of open access to information. This means that research data and research material that is stored at the institution and is to be regarded as received by or produced at the institution is a public document according to the Freedom of Information Ordinance. A public document is a publicly available document that everyone has the right to read, except where covered by the confidentiality provisions contained in the Public Access to Information and Secrecy Act. Confidentiality may apply, for example, if a document contains sensitive personal data.

This also applies to research material. Access to research material that is copyrighted can thus be granted under the principle of open access on the grounds of it being a public document. However, if the material is covered by copyright, the person requesting the material as a public document may not use the research material without the permission of the copyright holder. The fact that research material constitutes a public document thus does not mean that the employer “owns” the material according to the copyright rules.

It is the higher education institution’s responsibility to ensure that the principle of open access to information is applied correctly. The regulations surrounding the principle of open access with regard to research data may be difficult for an individual researcher to comprehend. The institution therefore also has a responsibility to provide information and support to researchers on how the principle of open access to information may be applied to their research projects. The principle should not come as a surprise to researchers.