Belgium recently passed a law allowing researchers to make any of their article open access if the majority of the research funding came from Belgium public funding

Here is the law:

Art. 29. Dans l’article XI.196 du même Code, inséré par la loi du 19 avril 2014, il est inséré un paragraphe 2/1 rédigé comme suit:

“§ 2/1. L’auteur d’un article scientifique issu d’une recherche financée pour au moins la moitié par des fonds publics conserve, même si, conformément à l’article XI.167, il a cédé ses droits à un éditeur d’un périodique ou les a placés sous une licence simple ou exclusive, le droit de mettre le manuscrit gratuitement à la disposition du public en libre accès après un délai de douze mois pour les sciences humaines et sociales et six mois pour les autres sciences, après la première publication, dans un périodique, moyennant mention de la source de la première publication.

Le contrat d’édition peut prévoir un délai plus court que celui fixé à l’alinéa 1er.

Le Roi peut prolonger le délai fixé à l’alinéa 1er.

Il ne peut être renoncé au droit prévu à l’alinéa 1er. Ce droit est impératif et est d’application nonobstant le droit choisi par les parties dès lors qu’un point de rattachement est localisé en Belgique. Il s’applique également aux œuvres créées avant l’entrée en vigueur de ce paragraphe et non tombées dans le domaine public à ce moment.”.

Google translate:

"§ 2/1. The author of a scientific article from a research financed for at least half by public funds, even if, in accordance with Article XI.167, he has assigned his rights to a publisher of a periodical or has placed them under a single or exclusive license, the right to make the manuscript freely available to the public for free access after twelve months for the humanities and social sciences and six months for other sciences, after the first publication in a periodical, subject to mentioning the source of the first publication.

The publishing contract may provide for a shorter period than that set paragraph 1.

The King may extend the period laid down in paragraph 1.

The right provided for in paragraph 1 can not be waived. This right is imperative and applies notwithstanding the law chosen by the parties since a point of attachment is located in Belgium. he also applies to works created before the entry into force of this paragraph and not fallen into the public domain at that time. "

What's the point in waiting 6 or 12 months before allowing researchers to make their Belgium-funded article open access?


I think you are reading this wrong. It's not that you are not allowed to make something open access before this time span, it's that you have to after it when public money has been used. This is called Delayed Open Access (thanks to Anyon, who mentions this in a comment).

Specifically note that the journal is free to open up the paper earlier:

The publishing contract may provide for a shorter period than that set paragraph 1.

(for instance, if you paid the open access fee). I think the most salient point is this:

The right provided for in paragraph 1 can not be waived.

That is, you cannot sign a copyright transfer to a closed-access journal that gives them the right to not make it open access even after the closing period is over.

If you are asking why they don't require immediate open access, you are back at Najib's answer - publishing is a business, and presumably the Belgian legislation has decided that Delayed Open Access is an acceptable compromise between the publisher's interests and the public's interest in free access to scientific information.

  • The King has the right to extend the duration, not reduce it. And what you say is not right, it's really as Franck said : this new law says that authors have the right to make their articles open access and cannot lose that right, but it doesn't say that they have to.
    – Arnaud D.
    Sep 10 '18 at 9:01
  • @ArnaudD. You are right about the whole King thing. I just deleted this part of the answer. As for the rest, I have re-read the English translation, and I still can't see how the text can be interpreted in the way that you and Franck did. Granted, it's possible that the translation is wrong in a key way, but from the English text I really can't see a requirement to wait for a specific time until open access is granted.
    – xLeitix
    Sep 10 '18 at 10:03
  • I just reread the English translation and I realised that there is a word that somehow didn't make it into the translation : if you read the first sentence without the "even if" part, it says essentially "The author [...], the right to make the manuscript available [...]". It doesn't actually has a verb! The French original actually has one, and it is "conserve", which could be translated as "keeps" or "retains".
    – Arnaud D.
    Sep 10 '18 at 10:14
  • So in fact, what this law says is really "The publisher cannot make the author wait for more than 6/12 month before making a publication freely accessible if he/she desires to do so."
    – Arnaud D.
    Sep 10 '18 at 10:30

Because publishers lobby governments too. If the rule had been immediate open access, this would have had the potential of wrecking commercial publishers' margins. Who would subscribe to expensive journals when all the papers are open access anyway?

But note that this will soon be obsolete thanks to the new EU-wide "Plan S", which requires full and immediate open access (among other things, such as authors retaining copyright on what they have written). The plan is slated to come into effect in 2020. See https://www.scienceeurope.org/coalition-s/

(However, Belgium is not yet part of the plan. But the ERC is, so all EU-funded projects will have to apply the rules above. And it's not unlikely that the Belgian funding agencies would join the plan too. If I had to guess, I would say that the Belgian agencies aren't part of the plan yet because there are several of them and it was harder to coordinate a simultaneous press release.)

  • The main Flemish funding agency has explained on Twitter that the reason they have not joined the plan is because they are currently working on their 2019-2023 policy plan, and joining Plan S immediately would complicate their procedures. But they have not excluded joining Plan S later this year.
    – Arnaud D.
    Sep 10 '18 at 9:32

Requiring open access after some period of time is a compromise.

On one hand, the government wants research done using public money to be public. I.e., taxpayer-funded research should be open access. The argument is that it's unfair to require taxpayers to pay a third party to view things that they have already paid for with their taxes. It's the same spirt as freedom of information laws.

On the other hand, publishers want people to pay to see "their" articles. They want to profit from the publishing of science and they have a lot of power by owning established journals.

So the compromise is to give publishers a fixed period of time to profit and then require it to be open access.

Note that this compromise is "future-proof". If the government later decides to demand immediate open access for research it funds, then within 6-12 months all prior work is also open access, so everything is open access. This overcomes one of the big challenges for the open access movement -- university libraries may be obliged to continue subscriptions to journals to retain access to decades-old research even if all the recent research in the area is available on arxiv.

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