The spread and speed of digital information have transformed many aspects of science, society and culture. Problems of access have grown at the same time. The digital revolution has outgrown traditional legal and organizational structures, while facilitating new ways for publishers to profit from a public good. Consider the British Library’s recent decision to digitise millions of pages of its newspapers. This has been achieved only through its partnership with Brightsolid, a commercial organization. Even though this is a British Library project, free access to this invaluable British history source is granted only to those lucky few able to travel to the Library. This is not a digital democracy by any means.
This issue highlights broader questions about data and transparency that are now being addressed by the Government. The Coalition Programme states the need for new ‘right to data’ legislation, by which government-held information can be requested and used by the public. It pledges that ‘all data published by public bodies’ will be ‘published in an open and standardised format, so that it can be used easily and with minimal cost by third parties’. We would like to see this important legislation extended even further, in order to make other publicly-funded research available online and freely accessible without charge.
At present, most research paid for by the public– through research grants, tax breaks and donations – is not accessible to the public. Universities host closed academic databases, from which ‘outsiders’ sometimes (but only sometimes) can purchase individual articles, but at considerable and often staggering cost. This means that the public is essentially paying twice, or even more seriously, has no access to the research it has financed. The UK’s research councils have acknowledged the problem of paying double, and of hierarchies of access.  Each of the seven councils is charged with investing taxpayer’s money in science and research in order to ‘advance knowledge and generate new ideas which can be used to create wealth and drive improvements in quality of life’. And yet, with the important exception of the Medical Research Council (MRC), they do not enforce the policy of open access that they have theoretically endorsed since 2006, and there are significant loopholes.
The MRC drew heavily on the path breaking work of the UK’s Wellcome Trust. Like the National Institutes of Health in the US, it makes open access a mandatory condition of securing a grant. After an independent study was conducted in 2008-9, the strategic partnership of Research Councils UK (RCUK) also agreed to support increased open access ‘over time’, by building on their mandates to grant-holders to deposit research papers in suitable repositories within an agreed period, and by extending their support for publishing in open access journals. These measures are important. But they have not been made compulsory. Action taken by the funding councils varies and the policy is not systematically monitored. Moreover, two of the most influential councils – the AHRC and the ESRC – have ‘loophole mandates’ that do not enforce open access if it is against the wishes of the publishers. These loopholes must be closed by governmental intervention. While the mandates for open access agreed to in principle by the research councils are laudable, therefore, new legislation is needed to help put them into practice.
The Need for Legislative Reform
To secure open access, academic authors should retain their own copyright, or at the very least retain the right to authorize open access. (Today, authors give all their rights for free, to commercial publishers who then sell it back to the publicly funded universities employing these same authors). As part of the government’s commitment to governmental transparency, and to encourage the use of publicly-funded knowledge for the public good, new legislation should ensure that UK Research Councils make open access a condition of funding. This need not be done through changing copyright law, although this may be a long-term objective, or by insisting on researchers using open access journals, which can threaten academic freedom. The principle of open access can be ensured by one simple change to the law: researchers funded by public monies should, as a condition of funding, retain the right to authorize open access. Researchers will then be able to publish articles in the journals of their choosing, provided it is also published in an online, free to access, public domain repository. This single piece of legislation will remove the existing loopholes in open access mandates that depend on publisher consent, and therefore only pay lip service to the principle of open access.
It is not only new research articles that need to be put into the public domain. There is an entire backlog of valuable academic work in the sciences, the social sciences and the humanities, much of which is retained by universities, and either not covered by copyright, or “grey” (meaning that the copyright owner is not possible to establish). New legislation could also make it mandatory for university presses to put their non-income generating monograph backlist, and unpublished theses, into the public domain. This could be facilitated by partnerships between universities and organisations like the Open Humanities Press (OHP) and the Open Access Publishing in European Networks (OAPEN) consortium, each of which specialises in peer-reviewed open access monographs. These online works are created by publishers that profit not from copyright fees, but by selling print copies on demand. Accompanying legislation that ensures researchers retain their own copyright, therefore, could be a secondary act that makes it mandatory for UK research councils to support organisations like OHP and OAPEN as platforms for the publication of completed theses, articles and monographs.
The two measures outlined above are limited in scope. But they are realistic, inexpensive and attainable goals that can be put into effect immediately.  Opponents to the open access movement might argue this will threaten the viability of a stable system, decreasing academic standards and toppling publishers. These claims are unfounded. Firstly, open access still depends on peer review. Scholarly integrity is thus maintained, and the impact of British academics will even be strengthened, as there is evidence that open access publications have higher citation rates (this will impact positively on Britain’s global university ranking).
Nor is there evidence that the publishing industry will be negatively impacted by a move towards open access, particularly if that access takes the form of ‘gold’ publishing, typically based on an author-led fee model. Indeed, the 2008 report commissioned by the RCUK found that ‘there is no inherent reason why such a move [to open access] should jeopardise the position of existing publishers.’  At present there are over 25,000 journals in English on the market. Within the last 20-30 years, three commercial companies – Reed Elsevier, Springer Verlag and John Wiley – have taken control of at least 40% of articles published, with profit margins of over 36%. In the long term a shift to open access will reduce the monopoly of these commercial companies and provide alternatives for universities struggling with limited funds.  Moreover, there is ample evidence of new commercial opportunities for publishers. An example is the University of Michigan Library’s Scholarly Publishing Office, which has become revitalised by its association with the Open Humanities Press.
There are therefore insufficient reasons for inaction on the grounds of concern for the publishing industry, or for the maintenance of scholarly standards. The reasons for action are, by contrast, clear. By facilitating collaboration between the Coalition government, the research councils, university researchers and librarians and publishing presses specialising in open access, legislative change can reduce the gulf between theory and practice in access to publicly-funded material. Along with the government’s commitment to open-source software, it will help make the digital age a more transparent, accessible and democratic one.
 Lisbet Rausing, ‘Toward a New Alexandria’, http://www.tnr.com/article/books-and-arts/toward-new-alexandria.
 The Coalition: Our Programme for Government, p.21.
 These are the Arts and Humanities Research Council (AHRC); the Biotechnology and Biological Sciences Research Council (BBSRC); the Engineering and Physical Sciences Research Council (EPSRC); the Economic and Social Research Council (ESRC); the Medical Research Council (MRC); the Natural Environment Research Council (NERC); and the Science and Technology Facilities Council (STFC).
 Open Access to Research Outputs: Final Report to RCUK, SQW Consulting (September 2008). This independent paper reported that very few funders are ‘currently monitoring compliance with their mandates in any significant way’. (p.5)
 Open Access to Research Outputs.
 There are longer, more ambitious goals that the Open Access movement seeks to pursue, including the creation of a large-scale ‘digital library’, a ‘new Alexandria’ for the digital age, in which all the natural and social sciences of the West as well as our global literary and cultural heritage is interactive, sustainable and fully-searchable. See Rausing, ‘Toward a New Alexandria’.
 This is the case with both ‘green’ open access, which involves papers being deposited in a repository and ‘gold’ open access, which means publication in an open access journal.
 Open Access to Research Outputs, p.4.
 Open Access to Research Outputs, p.7.
 There are more than 2,000 publishers of academic journals, but no other publisher holds more than 3% share of the journal market (as compared to the 42% held by Springer Verlag, Reed Elsevier and John Wiley). See Glenn S. McGuigan and Robert D. Russell, ‘The Business of Academic Publishing: A Strategic Analysis of the Academic Journal Publishing Industry and its Impact on the Future of Scholarly Publishing’, Electronic Journal of Academic and Special Librarianship, 9 (2008), pp.1-11; 5.
 Publishers also ‘bundle’ packages for universities and raise costs in ways that are disastrous for many universities. It is a measure of the extent of the ‘serials crisis’ that the University of California announced in June 2010 its intention to boycott journals owned by the Nature Publishing Group in protest at a 400% price rise – making their 67 journals cost the University well over $1 million dollars per year. See http://www.library.ucla.edu/libraries/2991.cfm
 See Open Access to Research Outputs, p.60.