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.
There is no provision in the Copyright Protection Act on copyright for employees. The legal rules that apply to employees’ copyright to materials created at work are instead based on custom and generally accepted practice. One such practice is the teachers’ copyright exemption applied within higher education.
The teachers’ copyright exemption is an unwritten rule of law that is based on a long tradition and that has developed through accepted practice. The teachers’ exemption primarily means that the copyright to both teaching and research material belongs to those people who are active teachers and researchers at higher education institutions.
For research, the teachers’ exemption means that it is the researcher or researchers who have produced research results and research material who alone or jointly hold the copyright to the material, not the employer. This differs from what applies in the labour market in general.
A prerequisite for research data and research material to be covered by copyright is that the material must meet the threshold of originality. This means a requirement that the material has a certain degree of originality and independence.
The teachers’ exemption means that the researcher’s permission is required for anyone else, for example the university, other researchers, companies and so on, to have the right to use copyrighted research material. In situations where several researchers jointly hold the copyright to research material, the consent of all copyright holders is required for the transfer of the right to use the material. The copyright holder also has the right to be named upon publication of the material. Copyright protection occurs automatically as soon as the material has been completed, and there is no requirement to report or register the material in any way to receive copyright protection.
Patentable inventions that are created as part of teaching and research within higher education belong to the teacher/researcher, not to the employer. This is explicitly stated in the Swedish Act on the Right to Employees’ Inventions.
The higher education institution has a responsibility towards its employed researchers to provide information and support regarding researchers’ copyright protection rights and how they can exercise control of their copyright.
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.