The open access dilemma

Universities want researchers to make their publications publicly accessible. They regard so-called open access publications as beneficial or science and as means to reduce costs for universities. Dutch Copyright Law gives academics the right to make a short academic publication open access after a reasonable time has passed since its original publication. The current law and its diverging interpretation by universities and publishers make for a dilemma regarding open access. Sigrid Hemels, Professor of Tax Law, explains the issue in an opinion piece in het FD.

Open access is deemed to be important for universities and science. Therefore, universities often oblige their researchers to make almost all their publications available with open access within six months after its first publication. In the meantime, publishing in a scientific journal (which is not always open access in all fields) is vital for these researchers' careers and outreach. To encourage open access, the legislator has decided that authors of short academic works funded with public money (e.g., when a university paid for research) have the right to make their work open access after a reasonable time since the first publication has passed.

Conflict risk
Universities oblige their researchers to make their work open access. The problem is that they consider six months a reasonable time, whereas some publishers consider twelve months a reasonable time for certain publications. Additionally, some universities oblige researchers to publish all their academic work as such, instead of only the short academic works. This causes a dilemma for researchers, explains Hemels: "they risk a conflict with their publisher if they stick to the university's obligation. If they decided not to, they would risk a conflict with their employer."

Publishing in Spanish or Indonesian journals 
According to some, a solution would be to publish in journals that allow open access. However, this is not a realistic option, at least not in the tax practice: "Tax-lawyers would then only be able to publish in a couple of English, Spanish and Indonesian journals. These are not the most relevant journals looking from a career's perspective and from a perspective of societal impact. Tax lawyers must also publish in Dutch to engage in the Dutch societal debate." Universities promise to pay for possible lawsuits, but according to Hemels, this is not an attractive solution: "It sounds great, but everyone who has been part of a lawsuit knows what an emotional burden this can be. In addition, you also risk reputational damage. Avoiding conflicts is better than litigation."

The obligation is especially unfavourable for part-time researchers, according to Hemels: "In fields that include intense education duties, like law, more and more employees only have a part-time fixed-term educational appointment. They do not receive public money for publications but are expected to publish in their own time. Still, they are asked to publish in open access. This gives them weak arguments towards publishers while, at the same time, they have the most vulnerable relationship with the university." 

The Professor of Tax Law sees three possible solutions: "Free access databases for academic employees and students should be considered as an alternative for some disciplines. The Dutch publisher NLFiscaal already provides for this. The government should define the open access more precisely in the Copyright Law, and the university should take its responsibility as an employer: the end of open access does not justify all means." 

More information

Click here for the entire opinion piece in het FD (in Dutch)

In addition to the opinion piece, two articles were published as a diptych in Weekblad Fiscaal Recht on 31 March and 7 April 2022. Here, Hemels elaborates on the subject. In the first part of the diptych, she focuses on the meaning of open access and the possibilities tax-lawyers have to publish open access. In the second part of the diptych, she tells more about the legal and employment law aspects of open access publishing. Both articles have been made available open access in the EUR repository with the permission of the publisher.

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