Facilitating Open Access through Open Access Mandates: African Progress and Lessons from Dutch Copyright Law

By Samuel Ugwumba*
openacess pwani university kenya
Suppose you are an independent researcher (whether from developing or developed country) intending to find the cause of an infectious disease, the first step is to find out what others have written about it. And as any researcher knows, a search entry in an online database could turn up hundreds of results. The price limitation in accessing these results—leaving aside the legal and technological barriers— would almost prohibitively hinder not only the independent researcher but also those institutionally affiliated; after all, institutions have resource limits (serials crisis) and this is even truer for developing countries for obvious reasons. More important is that price limitations could dictate what research will be carried out. As a matter of development, developing countries should be able to carry out research that addresses their development concerns. How else are we to develop if the researches carried out address only the needs of developed countries?

The Open Access and Open Access Mandates initiatives are meant to deal with these concerns. Open access can be classified according to the mode of provision and the degree of restrictions accompanying the access. The former is generally through a Gold or Green avenue; the latter is either gratis or libre open access. The two avenues (Gold and Green) could be used to provide either gratis or libre open access. When research organisations or funders adopt open access mandates, they require grantees of research funds to make their research freely available either though the gold or green avenues.
Regarding the availability of OA repositories, African countries are moving forward but certainly more needs to be done. According to OpenDOAR, there are currently 135 academic OA repositories in Africa with South Africa (31), Kenya (21); and Nigeria (17) leading. In the case of Nigeria, the number of OA repositories is disproportionate to the number of universities. Nigeria has more than 100 universities and so more needs to be done. The situation with open access mandates is no more promising. According to ROARMAP, there are currently 19 research organisations and funders in Africa with open access mandates. Whereas South Africa and Kenya have 8 and 5 institutions adopting OA mandates respectively (Strathmore inclusive), Nigeria has only 1. There is clearly room for improvement, especially with Nigeria.
There are however two major concerns regarding the utility and implementation of these OA mandates: whether the OA mandates are really mandatory and the issue of compliance. Regarding the former, most institutional OA policies reviewed on ROARMAP waived the requirement that the item deposited in the repository be made open access. This is true both for developed and developing countries. In fact some policies even waive the requirement that the item be deposited in the institutional or subject repository in the first place. In Kenya, Pwani University has the strongest OA mandate. NO waiver for depositing article in the institutional repository; deposited article must be made open access; and author cannot waive giving permission to make the article open access.
With regards to the latter (i.e. compliance), the issue is primarily a legal one. For example it is not unusual that authors assign their copyrights to publishers even after signing the OA mandate agreement. Consequently, the practice of most academic institutions with OA mandates is to reserve a non-exclusive license allowing them to make the article freely available. Or to attach an author addendum to the publishing agreement received by publishers. The obvious problem with the latter is that it is an offer and so it can be rejected. With regards to the former, the enforceability of such reservations is not that straightforward. Transfer of copyright ownership to the publisher subsequent to the grant of a non-exclusive license is somewhat conflictual. The common law principle of nemo dat quod non habet might seem applicable on the surface but this is not so. One who grants a non-exclusive license still has enough to transfer. Rather, the issue is whether the transfer of copyright invalidates the non-exclusive license. Neither Kenyan nor Nigerian copyright law seems to deal with this. The closest provision to addressing this under Kenyan law is s.33 (4) which states that “A non-exclusive license to do an act the doing of which is controlled by copyright may be written or oral, or may be inferred from conduct, and may be revoked at any time, but a license granted by contract shall not be revoked, either by the person who granted the license or his successor in title, except as the contract may provide, or by a further contract.”
What is significant about this provision is that a non-exclusive license by contract cannot be revoked except by the terms of the contract or by a further contract. Is the transfer of copyright to a publisher a ‘further contract’ that can revoke the non-exclusive license? US copyright law in s.205 (e) deals with this issue by providing that “A non-exclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner’s duly authorized agent…” provided two conditions are met.
Even if there was such a provision under Kenya or Nigerian copyright law, it is recommended that these countries adopt an open access provision in their copyright laws as Dutch copyright law does. The provision states that “The maker of a short scientific work, the research for which has been paid for in whole or in part by Dutch public funds, shall be entitled to make that work available to the public for no consideration following a reasonable period of time after the work was first published, provided that clear reference is made to the source of the first publication of the work.” Whereas this provision, inter alia, applies only to short scientific works benefiting from Dutch public funds, the effect is that an author cannot assign her right to make the work freely and publicly available.
This provision effectively strengthens open access mandates and thereby facilitates open access.
*Samuel Ugwumba is a Ph.D candidate and University College Cork Law and Business scholar researching on copyright and music. Follow him on Twitter @samwilbanks

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