Obligation to Open Access: Academic Publishing of the Future?

Open Access is the principle of free access to scientific literature. Both the Swiss National Science Foundation and Swissuniversities are increasingly promoting Open Access. With this, the question arises, as to whether university employees may be obliged to publish Open Access. The authors describe in a first step, how this issue has been addressed in other countries, and then consider a possible implementation in Switzerland.


Introduction
In the September issue of the Swiss journal for judges («Justice -Justiz -Giustizia»), a practitioner expressed criticism regarding the proportional distribution («Parteienproporz») of judges according to party affiliation and related mandate taxes. 1 When current developments in such a forum are being discussed, their relevance for the law is undisputed. At the same time, only a small group of people can access these comments. The password-protected area is only available to subscribers. Should they not be openly accessible? Are there reasons to take action, so that scholarly publications can be made accessible for everyone? In particular the adoption of the Swiss National Strategy on Open Access (OA) and the following action plan («Aktionsplan»), approved in February 2018 by the plenary assembly of Swissuniversities, puts this issue on the agenda in Switzerland. The strategy and action plan place great emphasis on flexibility for the universities, especially in the process of adapting the framework. 2 Nevertheless, many aspects still remain unclear. While there are many factors, which play a role in the discussion, this paper will focus on making an inventory of the legal regimes which govern the question of OA in different jurisdictions. One of the said unresolved issues, related to the relationship between researchers, their home institutions, publishers and society, with a doctrinal focus on identifying and interpreting the rules applicable to OA, is the subject of this ____________________________ 1 Giuliano Racioppi, Die moderne "Paulette": Mandatssteuern von Richterinnen und Richtern, in Justice -Justiz -Giustizia, 2017/3. 2 Swissuniversities, Aktionsplan, p. 9. publication: Can and should university employees be obligated to provide Open Access to their publications?

I. Current Situation
In the various academic disciplines, different OA approaches, models and attitudes can be found. 3 While OA journals have gained a strong footing in the natural sciences in particular, 4 conventional journal publishing is still dominating the market in the legal sphere. 5 This prominent position of publishers in the field of print and digital journal subscriptions has led to increasing costs for libraries in recent years. 6 Only very few people are aware of the sums actually paid by the libraries. 7   budgets and the sheer increase in information volume, mean that a significant portion of scholarly literature is no longer accessible. Hence, the interest in OA is growing. Theoretically, and from the perspective of a publishing scholar, two paths that can be taken. Firstly, the publication in a journal, which provides content freely accessible online -the «gold road». 8 Secondly, the «green road», which takes a publication that has previously been published elsewhere and makes it available in an online repository. 9 Another dimension is the institutionalization of the idea of OA. Recent developments, such as the aforementioned action plan under the national OA (judgment 1C_40/2017, July 5, 2017). With specific reference to the information-friendly information and privacy law legislation of the Canton of Basel-Stadt, the judges considered it reasonable to put private and public interests of a certain weight over the request for access (E. 6.2.2).  13 These institutionalization steps stand between the poles of national and international copyright law on the one hand, and the idea of OA as global scholarly communication on the other. 14 In practice, different forms of institutionalizing OA have been developed, with specific features determined by their geographic perimeters. Some of them, by practical relevance, will be presented in the following.

Harvard University
In 2008, the Faculty of Arts and Sciences at Harvard University unanimously voted in favor of transferring the non-exclusive rights of its researchers' writings, on all forms of non-commercial use, to the ____________________________ 10 Swissuniversities, Open Access, chap. 1. 11  university. 15 Other institutions followed. 16 From the perspective of copyright, the mentioned model is nothing more than a non-exclusive license. 17 The university will gain the rights to all works by their own employees. 18 Once the university has received the final works, they will be saved in the DASH repository, 19 accessible to anyone without registration.
A not-for-profit and non-derivative use by third parties is possible, but must conform to the DASH conditions of use. 20  Nevertheless, the Harvard model appears as a useful complement to the US legal system concerning copyrights. One reason is, that the system alone -even with its limitations and exceptions for the benefit of education, science and archiving -does not meet the full potential of the new technologies for educational institutions. 33

University of Suffolk: UK Scholarly Communication License (UK-SCL)
In

III. Implementation in Switzerland
The question of whether university employees may or should be obligated to OA cannot be answered solely from the perspective of university laws. Rather, recent legal developments, implementation approaches and future challenges must be taken into consideration. 64 This notably includes cantonal law, due to the universities' funding 65 as outlined in the federal law. The Federal Act on Funding and Coordination of the Swiss Higher Education Sector (Higher Education Act, HEdA), 66 in particular, must be taken into account. 67

Affected Areas of Law
Open Access and any related obligation thus concerns various legal bases. In the following, aspects of constitutional, 14 copyright and competition law will be discussed in particular. A distinction will be made between the perspective of the university, and that of its research staff.

a) Constitutional Law
From a constitutional point of view, the first question is whether an obligation to OA could be supported by the scholarly freedom provided for in Art. 20 of the Federal Constitution of the Swiss Confederation (BV In general, academic freedom does appear to correspond with OA. An image of science whose main function is based on «cognition by method» 73 benefits from the aim of free accessibility of scientific information. 74 A part of science is the distribution of such information in an open, rational discourse. 75 In addition to determining the respective publication for distribution, free publishing also involves having the option to choose the date and channel of publication. 76 This aspect shows that an obligation to OA is in tension with academic freedom. Accordingly, such an obligation must take considerations of proportionality into account from the very start. 77 Not only the researchers as natural, but also as legal persons for such licenses can be found online, for example on the SPARC website. 100 They can then be incorporated into a corresponding contract. 101 The default rules of the law shall apply, if parties did not derogate from these rules by agreement. 102 Where Swiss law applies, Art. 381 para. 1 of the Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations, OR) 103 is of particular relevance. According to this article, only those rights shall be transferred that are actually needed for the implementation of the contract. 104 If the author concludes a publishing contract with an OA publisher or repository, the reproduction 105 or access rights 106 are no longer in the foreground, their place being taken by the technical and salesrelated services of the provider. 107 The interest of the author in granting a nonexclusive license corresponds with that of the university as operator of the repository. Ideally, the latter has no interest in an ____________________________ extensive or even commercial exploitation of the rights. 108 For this reason, problems arise especially when the author is bound by a publishing contract. 109 In such cases, negotiations between the university and the publisher seems to be the most promising for all involved. 110 As in the United States, 111 cooperating publishers can then benefit from their appearance on the university website. 112 Altogether, it can be stated that the existing Swiss CopA enables, but does not promote, OA publications. What changes in favor of OA would be possible on the part of the legislature or universities? One approach would be the combination of public and copyright law rules. 113 Through mandatory rules, the right to make publicly accessible would remain with the copyright holder. Immediately, or after a specified period, the author would have the option or obligation to deposit the work in the repository. 114  compulsory licenses appears as a relic of an old-fashioned copyright system and is thus only partially effective. 115 Barrier schemes («Schrankenregelungen») 116 that benefit the operator of the repository must respect the requirements of the three-step test 117 -and seem difficult to enforce politically, because they would deprive the author of a part of his or her copyright from the outset. 118 It should be noted that most of these proposals do not include OA obligations, but try to promote the aims by other means. Suggestions for OA obligations generally relate only to higher education law, as well as to regulations of funding organizations, such as the Swiss National Science Foundation (SNF).

c) Competition Law
Some publishers of reputable scholarly journals hold a quasi-monopolistic position. This is reinforced by several trends. Aspects of competition law are also noted in online platforms with a solid customer base. While offering customers added value, they complicate the entrance into the market for future competitors. 119 On an individual basis, this situation can be avoided in part by selfarchiving. Collectively and sustainably, ____________________________ this can happen through the creation and preservation of OA business models. 120 In the promotion of Open Access, there is regular mention of antitrust price control over the large publishing companies, and thus of measures for guaranteeing competition. 121 If, in the national OA agenda, an obligation to publishing Open Access in institutional repositories is pursued, these repositories become competitors, because they effectively constitute a part of the publishing industry. 122

The Example of the University of St.Gallen and the National Science Foundation
ding. 125 The University of St. Gallen, for example, has an OA regulation that governs various aspects. The duties of the researchers include providing bibliographic data, full texts as a pre-or postprint version, and ensuring nonexclusive distribution rights in publishing contracts. A higher level of liability arises with the Implementation Provisions for Doctoral Studies of May 2, 2017. Pursuant to Art. 31 para. 1, the doctoral candidates must declare that they transfer to the university the rights to save the dissertation electronically, to make the dissertation publicly available in data networks and to provide further copies to the professors of the University of St. Gallen.
In Switzerland, the Swiss National Science Foundation (SNF) attracted particular attention with its obligation requirements. The aforementioned Vision 2024 aims at introducing and coordinating OA policies, negotiations with publishers (known as offset agreements, or the «offsetting road»), the use of alternative forms of publication, 126 the coordination and pooling of resources, 127 the formation of a supportive regulatory framework, the establishment of a national monitoring system, and raising of awareness in general. Different scenarios are feasible. 128 As co-signatory of the Berlin Declaration, the SNF sees itself as a promoter of OA efforts and is trying to develop a corresponding political frame-____________________________ 125 As an example and as a comparison, see ETHZ, as policy; UNILU, as guideline; UZH, as guidance. 126 Which would lead directly to the gold road. 127 In particular, the green road approach could be optimized and made more efficient by working with existing (in-house) infrastructures. 128  work. It is therefore not surprising to contribution recipients that Open Access publication is required. 129

Challenges for the Establishment of OA Obligations
Different interests of the parties involved -the institutions, individual researchers and representatives of the publishing industry 130 -as well as the international context of OA 131 make a possible introduction of OA obligations into a complex project. This circumstance becomes particularly evident when a functioning and reliable OA obligation rule must be transferred to another institution. 132 For Switzerland, with a decentralized education and research system, 133 this is not much different. 134  importance for the implementation, but they are no guarantee of success. Instead, individual researchers need to be convinced of the idea. 135 Such conviction may arise, in particular, if a similar boost of reputation can be achieved through OA publications. Furthermore, personal advocacy is needed on the part of universities. 136 While a wide access scheme is in demand for foreign research results, the university's own publications are largely still being held under wraps. 137

IV. Conclusion
When addressing Open Access, the specific implementation must be distinguished from the vision. 138 In answering the question of whether an OA obligation can be introduced for researchers in Switzerland, a more concrete framework would be desirable. What must be clarified, in particular, is whether the Swiss legislator in the ongoing revision of the Copyright Act is willing to introduce a secondary publication right («Zweitveröffentlichungsrecht») for researchers. 139 Furthermore, in relation to Art. 20 BV, ____________________________