Is there a good free speech argument against open access laws?
I ask this because the US Congress is contemplating one such law, albeit in the form of an agency budget. The bill would require researchers who are funded by the National Institutes of Health to make their research freely available online at PubMed Central within a year of publication.
The open access provision is buried in the part of the bill dealing with a Public Health and Social Services Emergency Fund. I’ll quote it here because it can be tough to find:
Sec. 221. The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.
For sensible commentary, see the post at Effect Measure.
Issues of copyright aside, both Canada and the United States have constitutions which nominally prevent the state from interfering in the free expression of ideas. In the US, it’s the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In Canada, where our constitution is composed of nested lists, we have section 2(b) in the Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
- (a) freedom of conscience and religion;
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and
- (d) freedom of association.
When we think of freedom of speech, we usually imagine instances of censorship where government limits expression. Here, though, we are not thinking about a ban on publication, but forced publication in a publicly accessible database. On the face of it, this seems to violate freedom of expression. Compelled speech infringes freedom of expression just as much as censorship.
In Canada, open access laws which violate publishers’ freedom of expression might be justified under s.1 of the Charter. That provision places limits on protections given to constitutional rights and freedoms, and the court uses the Oakes Test to determine if s.1 ‘saves’ the infringing law. Open access advocates should consider lining up an argument which meets this test, and look to s.10 of the Library and Archives of Canada Act. It requires publishers deposit with the library two copies of every publication made available in Canada.
Thinking about open access laws in this way might perplex proponents of open access, because arguments for free speech are commonly identified with arguments against censorship. Indeed, open access is usually seen as as promoting free speech by removing barriers to the open exchange of information.
It should be no surprise, then, that my quick look around the Internet and a few academic databases found no arguments about how open access might threaten free speech. (Drop a mention in the comments if you know of one.) This could indicate my speculative concern is misplaced, or reveal an opportunity for dinosaur publishers to catch the open access movement off guard if they challenge open access laws in court. Here’s a case where I’d rather be wrong.
For two Supreme Court of Canada judgements involving the issue of forced speech, see:
- RJR – MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (S.C.C.). [re: warnings required in tobacco advertising]
- Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (S.C.C.). [re: an adjudicator’s order to an employee that they write a letter of recommendation]