Dans ce second post, Cristina Pauner analyse l’article 37 de la loi de 2011 sur la Science, la technologie et l’innovation. Cette disposition permet aux chercheurs de publier librement leurs articles issus d’une activité de recherche financée majoritairement par des fonds publics. Le contenu de cet article est assez proche de l’article 30 de la Loi française République numérique. Elle illustre en conclusion son propos en évoquant le rôle des Universités espagnoles dans le développement de l’Open Access en prenant l’exemple de son Université, l’Université Jaume I.
1 .The legal framework in Spain in support of the open access model
Firstly, it should be noted that the Royal Decree 99/2011, 10 February 2011, which regulates official PhD. Its article 14.5 states that: « Once the thesis is approved, the University will deal with the file in an electronic format in an institutional repository and will send, under electronic format, a copy of the thesis as well as any additional information that is necessary to the Ministry of Education for the appropriate purposes. » Therefore, the obligation of the publication of the thesis in an institutional repository is applicable from February 2012.
Secondly, Act 14/2011, 1 June 2011, on Science, Technology and Innovation (LCTI) whose article article 37 affects research staff whose research is financed mainly with funds from the State budget and it determines the obligation to make public a digital version of the researches accepted to be disseminated in serial or periodical research publications. The electronic version must be published in institutional open access repositories as soon as possible but not later than twelve months after the official date of publication.
Given the centrality/importance of this article, we will analyse its content.
- The subjects: research staff. This article imposes an obligation to all who develop research activities, including research staff linked to the public university under career position, interim staff or contractual staff.
- Funding from the public state budget. The authors have discussed whether we should include the remuneration of research staff as part of the research funding or the articles refers only to specific research funding. Some academics understand that it refers to the case that researcher perceives a help for the development of a research project carried out by the Ministry of Economy and Competitiveness or other Ministry thus being enough the perception of this help to consider that there is the obligation imposed by article 37.2 LCTI. But, on the other hand, we share the view of other authors who argue that this article refers to all costs of the research activity including the remuneration of the staff in the part which corresponds to the research side (50% of the total).
- Article accepted for publication. This requirement places the obligation to publish in open access only on the official version of the researches that have been accepted for serial or periodical publications. That is, not all the results of research should be published in open access but only those who will be published in a traditional journal. This preserves the moral rights of the author (right of the author to the unpublished) and ensures the quality of the work which is required to publish in open access (only those works that have passed an evaluation and an editing process that ensures their scientific relevance).
- The exclusive rights do not have been transferred to third parties. The article 37.6 LCTI establishes that the previous obligation is « without prejudice to agreements under which the rights to publication have been attributed or transferred to third parties« . This has been interpreted by the doctrine as the way this obligation become optional for the author (i.e. under the sixth paragraph the author should publish in open access unless he prefers to give exclusive rights to a publisher). For some authors the obligation to publish in open access is meaningless due to this paragraph and it becomes an option for the author and the publisher.
We understand that this optional principle should disappear from the Spanish legislation, following the example of the new French Act for a Numerical Republic which proides the Open Access as an obligation for the publisher if the author decides to use it. Despite this shortfall, the assessment of this regulation is positive. Open access introduces a balance that ends with the current situation in which the universities have to buy the results of some research that have been previously funded without the need of having to manage the rights of exploitation of those results (which are scarce). It also preserves the interest of authors to publish in journals with high impact as it makes both options compatible (journals + open access) after the mandatory period of embargo. Finally, publishers might understand that open access negatively affects their business but there are still reasons that will support open access for them. Basically, the quality control and the selection of articles made by journals will not exist in repositories open so researchers will continue to use and subscribe the journals to locate the best articles.
As a reinforcement of legislation, other public authorities are developing policies for the promotion of open access on the basis that the research carried out with public funding must also have a public destination. Thus, autonomic and national calls for projects in the year 2016 also include an institutional mandate to publish in open access and even allow that the costs of publishing in open access can be applied to the projects in the case of the hybrid model (where the author pays a quantity of money to the publisher to get his article published in open access). This possibility raises some criticism because, firstly, the money invested in the payment to the publisher decreases the money devoted to other important items since the amount of public funds for research has not increased and the cost of this option is very high: researchers have to pay around 3,000€ by article. Secondly, because the State pays twice as much to the publishers: one, when paying for the open access and two, when subscribing to these journals.
2. The role of universities as enablers of open access
The contribution of the Spanish universities to the progress of open access has been essential, as all of them have implemented some institutional policies for its promotion.
Firstly, Spanish universities have mainly acceded to the Berlin Declaration. Currently, 42 universities have signed this statement. UJI was the first university to sign the Declaration in October 2005.
Secondly, it should be noted that the initiative promoted by Universities with Declaration of the Spanish Rectors’ Conference (CRUE) and the Spanish University Libraries Network (REBIUN) in 2004 in support of the model of open electronic access which urges:
- authors to prioritise publications that follow the model of open electronic access;
- academic and scientific institutions to create and maintain electronic open access institutional repositories where copies of scientific papers produced by their teachers and researchers are deposited (articles, journals, theses, reports, etc.); and
- political authorities with responsibility in the field of Science, Education or Culture to finance the creation of institutional or suprainstitucional repositories.
Thirdly, scientific repositories created by Spanish universities have been decisive in the consolidation of open-access databases (the full list of Spanish universities in open access journals can be consulted here).
Along with these University repositories, others should be mentioned:
- RECOLECTA is a national infrastructure of scientific open access repositories that emerged in 2007 and provides services to stakeholders and researchers;
- the digital repository of the Spanish National Research Council (CSIC) is Digital.CSIC) which is the largest public institution dedicated to research in Spain and the third largest in Europe and
- the Registry of Open Access Repository Mandates and Policies (ROARMAP), which is a searchable international registry charting the growth of open access mandates and policies adopted by universities, research institutions and research funders that require or request their researchers to provide open access to their peer-reviewed research article output by depositing it in an open access repository. It encompasses 617 institutions in 2017, 32 of which are Spanish.
Furthermore, the repository of the Universitat Jaume I is part of an institutional project for promoting open knowledge which was started following the signing of the Berlin Declaration in 2005. Since its inception in 2009, the repository UJI is the digital space for research and on research in Castellón, a multidisciplinary website that archives and disseminates scientific, academic, institutional and teaching production of the UJI researchers. It also includes external collections of interest for research. As of December 31, 2016 it contains 31.805 documents of which 25.584 are on open access (the rest in embargoed or restricted access by policy of the publisher or the author’s decision) and the number of scientific production made by UJI staff is of 7.824. The UJI repository is part of OpenDoar (Directory of Open Access Repositories), the world directory of repositories in open access.
Its lines of work in the short term to promote open access must include:
- To increase the number of researchers’ publications in open access extending to books, book chapters and participations in conferences (up to now the repository is focused on journal articles);
- To insert all UJI PhD thesis;
- To prepare the UJI repository to include data from research in open access;
- To promote the use of the repository among researchers.
Cristina Pauner, Professor of Constituional Law, Universitat Jaume I (Spain)
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Todolí, A. (2015), “El open Access en la regulación española”, en Investigación, Trabajo asalariado y derechos de propiedad intelectual, coord.. J. A. Altés Tárrega, C. Saíz García y J. A. Ureña Salcedo (dirs.), Tirant lo Blanch, pp. 119-136. https://dialnet.unirioja.es/servlet/libro?codigo=569136
Valdés Solís, T. (2016), El Open Access y el mandato institucional, http://naukas.com/2016/03/10/open-access-mandato-institucional/
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