Martin Sabo's Public Access to Science Act
SPARC Open Access Newsletter, issue #63
July 4, 2003
by Peter SuberOn June 26, Rep. Martin Sabo, a Minnesota Democrat with 25 years in the House, formally introduced H.R. 2613, the Public Access to Science Act (PASA).
PASA is the boldest and most direct legislative proposal ever submitted on behalf of open access. US Copyright law already holds that "government works" are not subject to copyright. PASA extends this exemption to works that are "substantially funded" by the federal government. The preamble to the bill estimates that the federal government spends $45 billion a year on scientific and medical research. If all works "substantially" based on this funding were in the public domain, taxpayers would get a significantly higher return on their investment in research. These works might be published in conventional, priced journals, but anyone who wanted to extend their reach and impact beyond the small set of paying subscribers would be free to do so. All this literature would suddenly be much more useful.
Sabo aides have told the press that the word "substantially" was not defined in the bill so that the many federal agencies that fund research could define it in their own ways. Hence, one agency could say that any publication based 25% or more on its grant must be in the public domain, while other agencies could set the threshold at 50% or 75%.
While PASA would be a giant step forward for open access, it may be bigger than necessary --for open access and for the political realities of Congress. For example, open access to research articles does not require open access to all the products of federally funded research, like software and new physical materials. Moreover, open access to research articles does not require that the articles be in the public domain. It only requires that there be no copyright or licensing restrictions (statutory or contractual barriers) preventing open access. Putting works into the public domain is a simple and effective way to remove these barriers. But consent of the copyright holder is equally effective.
The Creative Commons has many good examples of licenses that authorize open access and yet stop short of transferring works into the public domain. Since there is no need to jettison copyright in order to achieve open access, there is no reason to lose the votes of those members of Congress who would be unwilling to jettison copyright. Copyright also gives authors the legal basis to block the distribution of mangled or misattributed copies of their work, although in the real academic world authors rarely need copyright to preserve the integrity of their work.
The policy argument for exempting government-funded research articles from copyright is essentially identical to the argument, already embodied in the statute, for exempting government works from copyright. But if the current copyright climate makes Congress more likely to rethink this fundamental policy than to extend it, then PASA could broaden its appeal by allowing federally funded works to be copyrighted, provided the copyright holder consented to open access. The result for open access would be the same, and the move would disarm a host of objections. Copyright holder consent could be manifest by submitting the work to an open-access journal or depositing it an open-access archive.
Obtaining copyright holder consent for open access is difficult or hopeless for works that generate revenue. But scientific research articles earn no royalties for their authors and never have. Scientists are rewarded by making advances to knowledge, and to their careers, and would gladly consent to open access in exchange for research funding. Even in the absence of research funding, more and more scientists consent to open access as the best path to a larger audience and increased impact.
Sabo's office has made clear that PASA is a conversation starter. In the spirit of advancing the conversation, let me suggest a few revisions that would enhance its political chances and at the same time improve its effectiveness in providing open access to taxpayer-funded research.
(1) Recognize that copyright-plus-consent works as well as the public domain in creating the legal conditions for open access. If broadening the political support for the bill turns out to be necessary, then this is an easy way to do it that doesn't compromise the bill's commitment to open access.
(2) Limit the scope of PASA to peer-reviewed research articles and their preprints. This will prevent colliding with Bayh-Dole on software, machines, materials, processes, and other patentable discoveries. We should avoid these collisions not because Bayh-Dole is wise legislation, but simply in order to keep separable issues separate. This limitation would keep unrelated controversies from slowing progress on open access to research articles.
(3) Putting works into the public domain and obtaining copyright holder consent to open access are not themselves open access. They are merely two ways to clear the legal path to open access. PASA could go further and require actual open access. It could require funded researchers to submit their work to open-access journals or deposit it in open-access archives. OA journals are growing in number and prestige, and OA archives make open access compatible with publication in a conventional journal. This would take us all the way to the goal, not just to one of its important preconditions.
(4) Finally, PASA could require federal research grants to cover the processing fees charged by open-access journals --that is, could treat open-access publication as a cost of research. This would not only help assure open access to articles arising from funded research, but answer the complaints of journals that they cannot justify the expense of refereeing and publishing a paper without a revenue stream or an upfront fee to take its place.
The first two suggestions are aimed at helping the bill gather support in Congress and with the many stakeholders in scholarly communication. The last two are aimed at taking the bill further in promoting open access; they could be incorporated into PASA now or wait for supplemental legislation at a later time.
Text of the bill
Summary, status, and co-sponsors of the bill
Press release from the Public Library of Science first announcing the bill
News coverage
* PS. Section 105 of the Copyright Act says that "Copyright protection under this title is not available for any work of the United States Government...." It does not explicitly extend this exemption to government-funded works, which creates the need for a bill like PASA. However, it has been an open question whether Section 105 could be extended to government-funded works without an explicit amendment.
Here's a passage from the legislative history of Section 105:
A more difficult and far-reaching problem is whether the definition [of a "government work"] should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee, to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a "double subsidy," and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation, and the basically different policy considerations, applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.
The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant....What's interesting is that Section 105 has always been open to the reading that PASA makes explicit. PASA would settle a previously unsettled point of law, or close the open texture of a deliberately flexible statute, not reverse the effect of a clear rule.
Moreover, in Section 105 Congress acknowledged the important policy argument that Sabo cites on behalf of PASA. Those who say that PASA is contrary to US law and policy need to reread the legislative history.
Legislative history of Section 105 of the Copyright Act (U.S. Code, Title 17)
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