The Pathway for Open Access to Publicly Funded Research in Australia

Abstract The Article argues that Australia’s current open access framework remains structurally inadequate because it relies predominantly on soft-law policy mandates rather than enforceable statutory rights within the Copyright Act 1968 (Cth). While international jurisdictions increasingly embed open access obligations into legislative and regulatory systems, Australia continues to depend on fragmented institutional compliance and funder policies that are vulnerable to publisher contracts and inconsistent implementation. Through comparative legal analysis, the Article also examines the statutory secondary publication rights adopted in Germany and the Netherlands alongside policy-driven approaches in the United Kingdom, the United States, and Canada. It demonstrates that jurisdictions with legislative open access provisions provide greater legal certainty, author protection, and long-term sustainability than systems dependent solely on administrative mandates. Building on these international developments, the Article proposes a “Three-Phase Open Access Pathway” for Australia consisting of: (1) mandatory repository deposit of publicly funded research outputs; (2) statutory embargo limitations guaranteeing time-bound public access; and (3) mandatory open licensing through mechanisms such as Creative Commons licensing. Further, the Article situates the proposal within Australian copyright jurisprudence by examining the broader public interest and technological balancing principles reflected in cases such as University of New South Wales v Moorhouse , IceTV Pty Ltd v Nine Network Australia Pty Ltd , and Roadshow Films Pty Ltd v iiNet Ltd . Ultimately, the discussion of the Article contends that statutory reform is both legally feasible and normatively necessary to align Australian copyright law with contemporary principles of open science, transparency, public accountability, and equitable access to publicly funded knowledge.