Claiming Open Science via Human Rights? An Analysis of General Comment No. 25 on Science and Human Rights

The human rights case can be made for Open Science – this has been made clear by the Committee on Economic, Social and Cultural Rights in its General Comment No. 25 on science and economic, social, and cultural rights. In this this much-awaited interpretation of the so-called right to science under Art. 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Committee made clear that Open Science forms part of the right to science in the digital era. Released during the Covid-19 pandemic, the timing could not have been better, for the pandemic not only illustrated in unprecedented ways the importance of science in today’s world, but also the advantages of open research practices in speeding up scientific discovery. Yet, does this legal development mean that access to scientific data and content can now be enforced before courts via the right to science? A closer look reveals that important hurdles in claiming Open Science via the right to science remain. In this short contribution, our aim is to highlight some selected challenges of implementing and adjudicating open research practices via the right to science.  

Open Science as a human rights issue 

Having effective access to scientific publications and data is essential for research and the advancement of scientific knowledge. In today’s knowledge societies, scientific and technological innovation are not only key for the prosperity of nations, but also the fulfilment of human rights such as the rights to food, health, and life. It is therefore unsurprising that Open Access, understood as the unrestricted accessibility and reusability of scientific content and data (see in detail the Open Definition), increasingly gains traction. While in the early days of the new millennium, it was a small group of mainly activists who believed in the unprecedented possibilities of the internet for science and the demands concerned mainly access to publications (“Open Access”; see for example the Berlin and Budapest Declarations on Open Access), over the years openness has turned into a broad claim and a broader movement under the heading of Open Science. Today numerous science policy makers at national, international and transnational levels demand, and indeed impose, open research practices (see for example PlanS). The fact that a human rights body now explicitly addresses Open Science can thus be seen as a very welcome support to a cause shared by many. In its General Comment (“GC”), which serves as an authoritative guideline for States, the Committee on Economic, Social and Cultural Rights (“the Committee”) outlines: “(…) States should promote open science and open source publication of research. Research findings and research data funded by States should be accessible to the public (.)” (at para. 16). The Committee also explicitly acknowledges that “the price of some scientific publications is an obstacle for low-income researchers, especially in developing countries (.)” (at para. 61). Yet, as we will show in the following, specific enforceable obligations cannot immediately be deduced from these findings. 

Open Science as part of States’ duty to conserve, develop and diffuse science 

A first hurdle relates to the fact that the Committee addressed Open Science as an aspect of States’ obligation to conserve, develop and diffuse science (Art. 15(2) ICESCR), which is a so-called obligation to fulfil or, in other words, a positive obligation requiring States to take action. Traditionally, only negative obligations were believed to be directly enforceable before courts. In the case of the ICESCR, as opposed to its sister Covenant on civil and political rights, an additional hurdle is the obligation of “progressive realization,” as stated in Art. 2(1), which is still often seen as degrading the Covenant to a merely aspirational document – despite restrictions by the Committee itself.  

The fact that the Committee addresses Open Science under Art. 15(2) ICESCR is not surprising, for this dimension of the right is particularly relevant in the science context because of the strong institutional and organisational nature of science. This requires positive action by States, usually through legislation, but does certainly not entail an obligation to immediately make Open Access the default publishing mode. In other words, this dimension of the right is rather an obligation of conduct than of result, leaving States some leeway in the implementation. 

However, the Committee does add further clarification of what is required. As part of States’ minimum core obligations, it spells out that Art. 15(2) requires States to develop a strategy or action plan to realise this dimension of the right (at para. 52). This opens the way for two possible legal claims: firstly, one could argue that in the digital era this requires States to adopt Open Science strategies. In other words, States that do not have such a strategy violate the minimum core. Secondly, the legal argument that could be made is that States that do have such a strategy – such as Switzerland – under the “retrogressive measures” doctrine have an obligation not to fall behind what is already achieved. It might thus be worthwhile to monitor how States with Open Science strategies proceed in the future. By way of example, should Switzerland decide to make budgetary cuts or restrict its strategy in the future, this could constitute a prohibited retrogressive measure, leading to a potential future violation of the right to science.  

Open Science and Intellectual Property 

While the obligation to fulfil stands out when it comes to the science system, also the other dimensions of the right, namely the obligations to respect and to protect the right have a role to play in relation to Open Science. Given the central role of intellectual property (IP) legislation in restricting access to science and its applications, it is unsurprising that the Committee also addressed the complex relationship between intellectual property regimes and the right to science.  

The Committee recognises that copyright restrictions limit access to knowledge and high publishing prices constitute a barrier for researchers worldwide. However, the Committee takes a more moderate stance compared to the UN Special Rapporteur in her 2014 report, in which she urges States to undertake impact assessments of their copyright legislation to ensure that they serve legitimate aims. The Committee, by contrast, merely outlines that the social function of IP regimes should prevail and that a balance must be struck between access and protection. 

Nevertheless, the Committee clarifies that States are obliged to eliminate laws that unjustifiably limit access to science as part of the minimum core obligations of the right to science. While leaving open what such an unjustifiable limitation would be, one could argue that this would involve examining whether copyright legislation still fulfils its object and purpose in the digital era. One of the core purposes of copyright legislation in continental Europe was to provide financial incentives to authors and publishers. The argument could be made that this has become redundant – at least for publicly funded research. Publicly funded researchers on the one hand do not need these economic incentives and the public interest to access taxpayer-funded research should outweigh commercial interests by publishers and authors. On the other hand, publishers have successfully developed Open Science business models, among them chiefly the so-called gold Open Access model. Shifting the costs from readers to authors, they do equally not depend anymore on revenues generated through access restrictions. 

What the Committee left out 

Finally, the question arises whether States have – under their obligation to protect – a duty to step in and prevent problematic practices in the science system. These include, for example, the data tracking practices increasingly used by big publishers which have already attracted vivid criticism. Another hotly debated issue concerns excessive author fees to publish, which arguably shifts the access problem from readers to authors. However, the Committee did not address the issue of whether there is a need for governments to intervene by imposing limits on large publishers. 

Procedural hurdles 

Further hurdles also remain when it comes to adjudicating Open Access via the right to science. Regarding judicial pathways – in other words, to bring a case on open access forward – the problem of non-justiciability must first be overcome at the national level. For example, despite statements by the Committee and dominant scholarship, the Federal Supreme Court of Switzerland still views the rights of the ICESCR to be non-justiciable. Furthermore, a complaint can in many cases not be submitted to the Committee at the United Nations level, as the majority of States has not ratified the Optional Protocol to ICESCR. Lastly, a complaint could be submitted to UNESCO, but this procedure has proved to be a rather “toothless tiger.” What seems to offer less gloomy prospects for advocating open access through the right to science are the political avenues. NGOs and advocacy groups, as non-state actors, can present reports on the right to science to the United Nations during for instance the Universal Periodic Review and take part in the discussion rounds, which provides a promising avenue for the further advocacy of open access via the right to science.  

Way forward 

What should not be forgotten in all this is that science is an area where self-regulation plays a crucial role. As the CESCR acknowledged in GC No. 25 (at para. 49): 

 ‘ […] open science cannot be achieved by the State alone. It is a common endeavor to which all other stakeholders should contribute, nationally and internationally, including scientists, universities, publishers, scientific associations, funding agencies, libraries, the media and non-governmental institutions. All these stakeholders play a decisive role in the dissemination of knowledge, especially when it comes to outcomes of research financed with public funds.’  

This means that Open Science policies should go hand in hand with efforts from within the scientific community and take into account its needs in order to be successful. The guarantee of academic freedom furthermore sets certain boundaries to impositions on science from the outside (see for a general account recently here). Achieving the Open Science transformation thus requires support from, and communication between multiple actors, including legal and political, and the scientific community itself. Finally, whether the right to science can serve as a catalyst for advocating open access yet remains to be seen.