This is NOT a small technicality!

One major argument publishers have taken with respect to open access mandates is that they harm the publishers’ intellectual property rights. While “harm” is relative, it is true that an open access mandate forces publishers to handle intellectual property rights differently. Just, not in the ways publishers say it does.

There’s a hearing about the Federal Research Public Access Act today, and although the background documents are pretty well put-together, and relatively balanced, it’s particularly frustrating to read their discussion of publishers’ IP rights (pages 9-10).

The document accurately states that “should a federal agency prospectively require recipients of federal funds to ensure that the publication of their work was made in an open access manner as a condition for receipt of federal funding for the research, a {constitutional challenge over government takings of property} would likely not be successful.” This is absolutely accurate.

It also states that “this effectively forces journals to yield their intellectual property rights in the peer reviewed article to the NIH requirement or not accept an article funded by NIH for publication.” This is not true – and the reason it’s not true is WHY THERE IS NO CONSTITUTIONAL PROBLEM WITH SUCH A REQUIREMENT.

The Fifth Amendment to the Constitution does forbid government takings of property without just compensation. But from the time of its creation, the copyright in a journal article belongs to its authors. The NIH-style open access requirement is something authors choose to agree to, or not, long before they ever create the article. Any cession of rights is agreed to by the author, before the rights exist. Considering how important federal grant funds are to many researchers, this is not a completely free choice – but I have heard very few authors actively arguing against such requirements. Most of them recognize the benefits open access provides to them and the research enterprise, and the moral claim that taxpayers ought to be able to access research they funded.

Even if you accept publishers’ arguments that they add value through the editing process such that the peer-reviewed, edited version is somehow morally a work of the publishers’ authorship (and boy howdy do a LOT of authors not agree with that), their rights are, at best, still derivative of the authors’ copyrights. Government open access mandates don’t take any rights away from the publishers; authors agree to conditions on their grant funding long before the publishers come into the rights-ownership picture.

The only choice forced on publishers is whether to publish the works of
an author who cannot sign over all the rights (because they have already
ceded some rights elsewhere), or not. They are not forced to cede their
rights, because at the point of cession, the rights are not theirs.

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