The Corona pandemic highlights in unprecedented ways the value of global collaboration in science and the wide and unrestricted access to research findings over the internet. These are the core claims of the Open Science movement, understood as an umbrella term (including Open Access) for efforts to make research at its different stages freely available over the internet. The paradigm shift towards open practices in science is underway, with major funding organisations at the national and international levels adopting Open Science policies. Yet, openness in science is not (yet) the reality, and in fact a closer look reveals that many questions are hotly debated. For its advocates, Open Science promises to make knowledge more democratic and transparent; opponents fear that it might be the end of academic freedom and the beginning of neo-liberal performance absolutism in science. Open Science is furthermore considered to acerbate the science competition between states. Not surprisingly, the call for a fair and just transition towards openness in science is growing ever louder.
The aim of this project is to explore Open Science from a public law perspective. Which constitutional considerations do and should guide Open Science regulations?
In a first, descriptive part, the project will analyze the current legal situation regarding Open Science. First, different legislative approaches at the national level will be analyzed: While in Europe a “soft” and indirect approach is prevailing, different countries in Latin America have enacted “hard” Open Science legislation. The project will then explore the developments at the international plane. In its recent General Comment No. 25, the Committee on Economic, Social and Cultural Rights asks states to promote Open Science, and UNESCO is currently preparing an international standard-setting instrument on Open Science.
In a second, empirical part, the project will explore how open practices affect and change scientific communication in the field of international legal scholarship. More than other sub-fields of the legal discipline, international legal scholarship depends on discourses transcending national borders, and Open Access bears the promise to facilitate this exchange. However, studies on whether this promise is fulfilled are lacking. This empirical part therefore aims to better understand how open access works “on the ground” and what the effects, benefits, problems and hurdles of Open Access in international legal scholarship are.
Based on these findings, and using a global justice framework, the project will normatively assess whether in the digital age, the human right to science and science related rights require open practices in science. In times where almost all aspects of our lives are determined by scientific knowledge, access to science by broad parts of society or “citizen science” is deemed ever more important and is also considered to be a tool to combat disinformation and strengthen democracy (societal argument). Other arguments supporting this view are that openness in science is considered to be beneficial for the advancement of science (scientific progress argument) and is furthermore said to combat the global knowledge gap (global justice argument). On the other hand, it is increasingly recognized that Open Science and Open Access also have a darker side. Rather than bridging existing gaps, they might exacerbate existing problems and create new exclusions. This part of the project will also address the question whether individual human/fundamental rights are suited to address the structural inequalities between peoples and societies marking today’s international order.