Free online access to tax-funded scientific research is the most recent movement by American open-access advocate group Access2Research.  The group calls for a policy similar to the one currently implemented by the National Institutes of Health (NIH).  New scientific papers, which were funded by the NIH, are deposited in the online databank PubMED within a year of being published and are open to the American public.  The group has filed a petition with the White House to have them issue an official response to the motion and already has over 85% of the necessary signatures to get it.

If accepted, the program would require all 12 of the US federal-science agencies (totalling approximately $60 billion in research) to adopt this policy of depositing articles, though no specific timeframe within which to do so has been proposed.  This movement may have more credibility than a movement advocating for access solely on the basis of fair use.  Access2Research`s position is more than the fact that copyright law can be circumvented by a purpose of research or scholarship under section 107 of US copyright law.  Their position is also based on the fact that the US tax-payer has funded this research and is thus entitled to access the results.  This is a unique argument for access that may be supported with an analogous situation already present in US copyright law.

Although the copyright implications of funding research aren`t specifically addressed in US copyright law, there is an analogous situation between funded research and works made for hire.  Section 201 b) states that “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title…”.  While funding research is certainly not an identical situation to employing someone to create a work, it does have a practical similarity in that the work would not have been created aside from the support of a contributing party.  In a work for hire scenario, an employer tasks the author with creating a work, and the author is compensated not with economic rights to the work but with whatever wage the employer has offered to pay them.  Thus the employer is compensated, in the case of a work made for hire, for their involvement in the creation of the work.  In the same way, a researcher wants to conduct research and publish a paper, but needs third party financial contributions in order to complete the work.  Is it fair to ask the person whose contribution paid for the creation of a work to pay a second time to have access to that work? 

In US law the employer, who has already compensated the author for creating a work, owns the copyright in the work and has full access to it.  While the analogy between employing someone and funding research is not perfect, there is a sense of fairness in the idea that someone who financially supports the creation of a work should have access to that work.  Besides justifying the policy on the basis of legal consistency, the fact that the NIH has already implemented this policy with success, suggests that the policy is sound.

Traditional publishing companies have naturally opposed this policy by stating that implementing the NIH system with all research funded through federal-science agencies would make that system unworkable.  Andi Sporkin, a spokeswoman for the Association of American Publishers states that publishers are working to advance the public access issue, but that implementing the NIH system as a one-size-fits-all for federally funded research would be a mistake.

What we can say is that this policy has already been adopted into a large tax funded research agency (NIH) and the policy is consistent with underlying theory of ownership in American copyright law.  While implementing free access for all federally funded research will no doubt require some minor adjustments for each field of research, the White House should recognize this policy as both fair and viable and therefore worth considering.

Adam Stevenson is a JD candidate at Western University

Posted in Copyright, Fair Dealing, Feature Post, IP, Ownership, US