Public Access, Copyright, and Publications Reporting Federally Funded Research

When the government funds research, it also has a fundamental interest in seeing it published; ensuring that research arising from federal funding is disseminated as widely as possible, with appropriate quality and integrity. It has long recognised this interest by encouraging researchers to publish in peer‑reviewed journals.

At the same time, longstanding policy and legal frameworks—including 2 CFR 200, the FAR, and relevant case law—recognize that copyright in these works rests with authors. Copyright is then used to support dissemination through a mixed public-private system, with publishers playing a central role in enabling discovery to drive innovation and in ensuring research integrity. Recent legal analysis by Sean O’Connor, supported by STM, reaffirms this balance and highlights the risks of interpreting federal authority over these works too broadly.

What the federal purpose license provides

Under federal guidance and regulations, when a federally funded researcher publishes an article reporting on federally funded research, the government has a limited, federal purpose license in works reporting on federally funded research. This “government use copyright license” or “federal purpose license” is spelled out in OMB Circular A-110 and 2 CFR 200. When asserted, this license must be scoped and interpreted within the federal procurement and grant framework set out in the Federal Acquisition Regulation (FAR), and consistent with the overall policy thrust of the FAR system. However, claims in the 2022 OSTP memo on Ensuring Free, Immediate, and Equitable Access to Federally Funded Research (the “Nelson Memo”), and some related agency plans, go much further.

When the government desires products it can distribute freely to the public, it obtains them through the procurement system. By contrast, the grant system is reserved to support extramural research, with the contractors and private sector controlling the results (other than in exceptional situations). The public benefit of this system is that federal funds leverage private investment in research and development all the way through to commercialization. While the government is granted some rights to use the research results that arise from its funding, these rights are intended for internal government purposes only, and not to compete directly with, or undermine, the relevant private industry.

Policy divergence

Overly broad claims related to the Circular A-110 government license in the Nelson Memo risk undermining the scholarly publishing industry by potentially creating direct competition with it. STM recognizes the continued policy momentum toward open access, and many STM publishers have adapted accordingly. However, until recently that momentum has stayed within long-standing interpretations of the government’s relationship to the private sector.

The 2013 Holdren Memo marked the first major change, requiring agencies to develop plans to make research papers publicly available (at no cost to the public). The Nelson Memo goes much further, seeming to require immediate public access to the final published version of research papers, without embargo. Increasingly, under the guise of the Nelson Memo, agencies are making much broader licensing demands that undermine author rights, publisher agreements, and copyright law.

Beyond this overreach, due to privity-of-contract issues,[1] the Nelson Memo is not on solid footing to accomplish its goals and, problematically, it puts universities in the position of potentially breaching their funding agreements with federal agencies with respect to the matter of an “equitable access” license.[2]

Furthermore, the type of distribution the Nelson Memo contemplates is not supported by existing copyright law. Under Uniform Grant Guidance, copyright accrues to authors, and copyright owners are entitled to full and fair compensation in the Court of Federal Claims under the Government Use Statute (28 U.S.C. § 1498). That statute was set up precisely to give a remedy to right holders whose IP was infringed by the government. Congress recognized that, while government use of copyrighted works may not strictly be considered a “taking,” since the owner still holds copyright, they wisely recognized that IP owners are harmed and should have the right to sue the federal government if their IP is infringed. Accordingly, federal agencies that require federal awardees to make unlimited no cost online public access to researchers’ manuscripts and publishers’ final publications are liable to those researchers and publishers for full and fair compensation of the value of such unauthorized use of the copyrighted works, and potentially could be sued in the Court of Federal Claims.

Lastly, the Nelson Memo’s misunderstanding of what a government license can and cannot do contravenes the fundamental tenets of the Bayh-Dole Act and its corollary revolution in federal innovation and intellectual property policy: to center development of research in the private sector (even when public monies are involved) and to excise government from the middle of such development.

Conclusion

The “federal purpose license” characterized by the Nelson Memo is not supported by existing law and regulation, including the government use copyright license in OMB Circular A-110. The latter has always required scoping within the context of federal procurement and the grant system set out in the FAR. When the government decides it wants to obtain products it can distribute to the public without cost, it obtains them through the procurement system. The public benefit in this decades-old mechanism is that federal funds can be leveraged to spur private investment in research and development all the way through to commercialization. There is no need or legal rationale to undermine the publishing industry that the whole research ecosystem relies on by mandating immediate release of publications.

To learn more, read the full report: Government Open Access Policies and the “Federal Purpose License”

[1] In the patent context, a key holding of the U.S. Supreme Court case Stanford University v. Roche Molecular Systems, Inc., 563 U.S. 776 (2011) was that contractors need to secure the appropriate rights from their employees and independent contractors in order to be able to fulfil their obligations to the federal agency under a funding agreement. If they do not, then neither Bayh-Dole nor any of the regulations in the FAR or Circular A-110 can be relied on to transfer those rights by operation of law.

[2] See Stanford v. Roche, id.