On October 7th 2016, the French Law for a Digital Republic Act (LOI n° 2016-1321 du 7 octobre 2016 pour une République numérique) came into force, following a one year open review process during which the draft law could be improved by citizens. This law introduces new provisions to regulate the digital economy, online cooperative economy, data protection and access to the internet. Two articles are of specific concern for scholarly communication, as they relate directly to open access/open data and text & data-mining (TDM).
Article 30 is about Open Access and creates a new right for researchers which creates a legal right for authors to archive an OA copy. It reads as follows:
“When a scientific article, result of a research activity funded for at least half by the State, local authorities or public institutions, by national agencies or by European Union grant, is published in a journal which comes out at least once a year, his author has the right to provide, even if he has granted an exclusive right to a publisher, a free availability in an open format, via digital channels, subject to the agreement of possible co-authors, to all the successive versions of the manuscript till the final version accepted for publication, as soon as it is freely made available by the publisher via digital channels, or, failing that, within a set period starting from the first publication date. That period is a maximum of 6 months for a publication in sciences, technical sciences and medicine and 12 in humanities and social sciences. The version made available in accordance with the first subparagraph cannot be commercially exploited.”
Article 30 also ensures the re-usability of open data deriving from public funding:
“When data result from a research activity funded for at least half by the State, local authorities or public institutions, by national agencies or by European Union grant are not protected by a specific right or a particular regulation and have been made public by the researcher, the institution or the research agency, their reuse is free. The publisher of a scientific publication mentioned in the subparagraph I cannot limit the reuse of the research data made public in the publication.”
Article 38, meanwhile, creates a new exception for TDM and modifies the intellectual property code as follows:
“Electronic copies or reproductions realized from a legal original, for the purpose of text and data mining included or associated in a scientific publication for the needs of the public research, excluding commercial exploitation. A decree lays down the conditions in which text and data mining are employed, as well as the modalities of preservation and communication of the files produced at the end of the research activities for which they have been produced ; these files constitute research data ;
Electronic copies or reproductions of a database realized by someone who has a legal access to it, for the purpose of text and data mining included or associated to scientific publications for the needs of a research activity, excluding commercial exploitation. The preservation and the communication of the technical copies made during the process, at the end of the research activities for which they have been produced, are provided by institutions appointed by decree. Other copies or reproductions are destroyed.”
Regarding TDM, it is expected that further decrees should soon be published to make explicit what this law allows. This new exception anticipates and supports the likely modification of the European Directive on Copyright in the Digital Single Market on this topic.
No mandate has been voted for OA, the government has chosen to create a new right for the researchers and a clarification from the ministry is still expected to know whether the law is retroactive or not. Each single institution should now vote a mandate at a more local scale if they want to accompany and amplify the effects of this new law. Some universities or institutions have already chosen this road and hopefully will be taken as an example by others which will help to fill French green OA repositories more effectively.