Open Access and U. S. Federal Information Policy

Authors

Eric Harbeson, Authors Alliance

ORCID IDs

0000-0003-2472-8816

Document Type

Report

Date of this Version

2024

Citation

Legal Pathways to Open Access White Paper (2024) 1

Also available at https://www.authorsalliance.org/legal-pathways-to-open-access

Comments

Copyright 2024, Eric Harbeson. Open access

License: CC BY-SA 4.0

Abstract

Federal agencies are directed, as a matter of United States Federal policy, to provide free, immediate public access to peer-reviewed scholarly publications that are produced with support from Federal research grant funding. Because copyright vests in the author of the work, agencies must have permission from the author in order to provide that access. A government-wide regulation, in place since 1976, constitutes one possible source for the needed permission. The “Federal Purpose License” provides that, as a condition of Federal funding, grant recipients issue the granting agency a non-exclusive license to use all works subject to copyright and either developed or acquired under the grant. The License allows the agency to “reproduce, publish, or otherwise use the work for Federal purposes and to authorize others to do so.” The License is functionally the same as other license agreements between parties. As a first priority license, the Federal Purpose License survives all subsequent copyright transfers, allowing authors to comply with grant terms and agencies to comply with their public access mandates. The License provides familiar language and consistency across agencies, helping simplify the compliance and subsequent publication process for grant recipients.

The License allows the agency to make many uses, and allows the agency to authorize third parties to do so, but it is also constrained. The scope of the License depends on the meaning of “Federal Purposes,” which is undefined but is likely tied to the purposes underlying the License itself to support research and provide the public with a return on its investment. Agencies desiring more permissive language may supplement the License with their own regulations, and some have done so.