Open access ‘unaccomplished’ – reforming copyright or reconceptualizing science? access to scholarly publications under a (reinterpreted) right to science

Abstract

This article identifies the impediments to science created by copyright and suggests ways to overcome these. It focuses on scholarly publishing--primarily of digital content--and queries whether commercial scholarly publishers continue to add value to research in the digital era. The deficits of copyright law, and potential solutions thereto, are assessed in light of the right of everyone 'to enjoy the benefits of scientific progress and its applications' ('REBSPA' or 'right to science'), as protected in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights of 1966. I find that, while, in the shorter term, existing copyright law needs to undergo certain reforms (which would all be supported by the REBSPA) to accommodate the needs of science, in the longer term, the right to science requires something else--much more, in fact. Firstly, there needs to be a move towards another science, a science reconceptualized so as not to be primarily driven by instrumental and profit motives. Secondly, following from that, science would need to be genuinely open. Among other things, this requires the creation of a true scholarly knowledge commons, necessitating far-reaching changes in the way copyright applies, or potentially its abolition, in science. Thirdly, the envisaged scholarly knowledge commons would have to be globally inclusive in scope--which is to be achieved by recognizing and respecting the mostly ignored international dimension of the right to science. This article questions the traditional role of the commercial scholarly publishers and argues for a paradigm shift in the sphere of copyright and science. Identifying flaws and gaps in the current official interpretations of the REBSPA, the right to science is reinterpreted in various respects here. In making my case, I rely on the notion of a 'right to research' under the REBSPA and am aided by the deconstructive concept of 'adequacy for science'.