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The future: open digital science

The amendment of Article 17 of the Digital Republic Bill

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1Article 17 of the government’s final version of the Digital Republic Bill took into account many of the guiding principles that emerged during the national consultation and the Gouv’Camp discussion forum. Improvements taking into account the ideas formulated by key witnesses are proposed.

Guiding principles

2The proposed text is based on the eight following guiding principles. These guiding principles were presented by Alain Bensoussan and Grégory Colcanap, co-rapporteurs in the framework of the consensual report by the Gouv’Camp’s Working Group on the Open Access Article (Gouv’Camp workshop on the draft Digital Republic Bill, 16/10/2015) and were the subject of a report submitted to Axelle Lemaire, Secretary of State responsible for Digital Affairs, on Friday 16 October 2015.

  1. Scientific texts must become common assets. Indeed, scientific knowledge and results are “knowledge commons” intended for universal use in the interest of humanity. Scientific texts may not be a means to prohibit or restrict access to scientific knowledge.

  2. The text concerning “data mining” must be reintroduced without fail. This is both an economic issue (for the sake of innovation and to drive research) and important for competitive positioning (acquire legal provisions comparable to those of other countries such as the United Kingdom). There is strong demand for French research to have regulations at least as favourable as those governing UK research (TDM) in order to be competitive. Data mining is a “telescope” granting a right to digital observation with total freedom.

  3. Scientific data that are more than 50% publicly funded must become knowledge commons. The goal is for the basic research data to be deposited simultaneously with the corresponding articles. Making such data available would make it easier to reproduce the research while also fostering innovation in civil society.

  4. The use of the content of a scientific article must include the possibility of commercial exploitation. Scientific texts as such may not be commercially exploited without the authorisation of the copyright holders. On the other hand, the content of a scientific text and the scientific and technical information it contains is potentially a source of innovations with considerable commercial benefits. The sharing of scientific progress, and therefore of the texts that describe it, is one of the fundamental missions of research organisations and universities. To prohibit the commercial exploitation of the contents of a scientific article by its authors and their employers would be contrary to the fundamental missions of schools, universities and teaching and research institutes, and would seriously handicap innovation in France. Limits placed by the author or a third party on the commercial exploitation of open access online publications can apply to the article itself, but not to the content or findings of the article.

  5. Exclusive transfer clauses must be declared null and void. A new balance for the various interests at stake should be found by taking the risks of contractual asymmetry into account.

  6. The final accepted version of a manuscript must be available immediately, or within a period of 6 to 12 months. The proposed embargo period would be a handicap for French research and its dissemination to other countries, nor does it concur with the European recommendations, which would create inconsistencies in the case of European contracts.

  7. Deposition of published material must be in open and permanent archives. It appears essential to mention the preservation of the right to file published material in open archives. The role of these infrastructures is to collect and preserve scientific production, and make it freely available in accordance with international standards. Failing to mention them would run the risk of denying them fair recognition as a strategic tool, with production being posted online haphazardly and with researchers refusing to deposit their work in open archives because of a preference for other digital forms.

  8. The Act should apply to contracts according to the rules of application of law over time.

3Some of these principles were taken into account in the drafting of Article 17 as approved by the Council of Ministers, and in particular:

  • the clarification of the provision relating to commercial exploitation;

  • certain transfer clauses to be declared null and void;

  • the maximum embargo periods to be reduced to 6 and 12 months;

  • the Act should apply to contracts according to the rules of application of law over time.

Proposal for amendments to the Bill

4Published scientific results. The additional amendments proposed to Article 17 in the version adopted by the National Assembly appear below in green.

5In Chapter III of Title III of Book V of the Research Code, Article L. 533-4 has been inserted, worded as follows:

Article 17

At the end of Chapter III of Title III of Book V of the Research Code, an Article L. 533-4 shall be inserted as follows:

“Art. L. 533-4. – I. - When a scientific
text result, arising from a research activity financed at least 50% by grants allocated by the State, by regional or local authorities or public institutions, by grants from national funding agencies or by European Union funds, is published in a periodical appearing at least once a year, its author, even after having granted exclusive rights to a publisher, has the right to make available free of charge in an open format, in digital form, in particular in an open, public and permanent archive, subject to the rights of any co-authors, all successive versions of the manuscript until the final version accepted for publication, as soon as the publisher itself makes the latter available free of charge in digital form, and, failing this, on expiry of a period running from the date of first publication. This period is six months for a publication in the field of the sciences, technology and medicine, and twelve months in that of the human and social sciences. A shorter period may be provided for certain disciplines, by order of the Minister for Research.

The version made available in application of the first subparagraph may not be exploited in the framework of a commercial publishing activity.

“II. – Once the data from a research activity financed at least 50% by grants allocated by the State, by regional or local authorities or public institutions, by grants from national funding agencies or by European Union funds, are no longer protected by specific rights, or special regulations, and they have been made public by the researcher, the research establishment or organisation, they can be freely reused.

“III. – The publisher of a scientific text mentioned in I shall not limit the reuse of research data made public in the framework of its publication.

“IV. – The provisions of this Article are public policy and any clause to the contrary is deemed to be unwritten.”

6Notion of scientific text. The notion of scientific text used by the text of the Bill does not correspond to a typology of data as used by researchers. It would be preferable to use the vocabulary used in the practice of law (“published scientific result”).

7The notion of scientific texts refers to Article L.112-2 of the Intellectual Property Code. A scientific text is considered as an intellectual creation, protected by copyright as originally expressed. This approach does not take account of the scientific or informational value of a scientific text, nor of the scientific data that it contains.

8Elimination of the notion of common assets. The reference to the notion of the common good and to Article 714 of the Civil Code has been deleted from the version of the bill adopted by the National Assembly; the text prefers to assert a principle of free reuse. This rewording has been thus:

  • The Government has taken account of the opinion of the Council of State, which considers that the effects of a reference to Article 714 of the Civil Code would be uncertain, due to the lack of sufficient jurisprudence. The wording chosen, resulting from discussions with the Council of State, has the same objective, namely the free reuse of data.” 

9TDM. The provisions of the Digital Republic Bill in its version of July 2015 incorporated in the Intellectual Property Code an exception to copyright and the right of the database creator in favour of text and data mining. This text was first deleted and then reintroduced by amendments before the National Assembly. Proposals for amending and strengthening this text paving the way for TDM are given below.

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