Authors Alliance and SPARC have released the first of four planned white papers addressing legal issues surrounding open access to scholarly publications under the 2022 OSTP memo (the “Nelson Memo”). The white papers are part of a larger project (described here) to support legal pathways to open access. 

This first paper discusses the “Federal Purpose License,” which is newly relevant to discussions of federal public access policies in light of the Nelson Memo.

The white paper is available here and supporting materials are here.

The FPL, found in 2 C.F.R. § 200.315(b), works like any other copyright licensing agreement between two parties. It is a voluntary agreement between author and agency that, as a condition of federal funding, the agency reserves a nonexclusive license to “reproduce, publish, or otherwise use the work for Federal purposes and to authorize others to do so.” The FPL was updated, effective October 1, to clarify that the reserved license specifically includes the right to deposit copyrighted works produced pursuant to a grant in agency-designated public access repositories.

With the OSTP memos instructing all agencies to make the results of federally-funded projects available to the public immediately upon publication, the FPL provides an elegant legal basis for doing so. Because the FPL is a signed, written, non-exclusive license that springs to life immediately when copyright in the works vest, it survives any future transfers of rights in the work. As a part of Uniform Guidance for all grant-making agencies, it provides consistency across federal grants, simplifying things for grant recipients, who have plenty of other things to worry about (it’s not entirely uniform, though, since some agencies have supplemented the FPL with License text of their own, expanding their rights under the License).

This protects both agencies and authors. Agencies must have permission in order to host and distribute works in their repositories. The FPL ensures that the agency has that authorization and that it continues even after publication rights have been subsequently assigned to a publisher. Meanwhile, authors are—or will be—required under their grant agreements to deposit their federally-funded peer-reviewed articles in the agency’s designated repository. The FPL ensures that, even if an author were to sign exclusive rights in a work to a publisher prior to complying with the deposit mandate, the author could still do so, despite no longer having any rights in the work herself.

The paper analyzes two ambiguous points in the FPL, namely, the scope of what rights agencies have as “Federal purposes” and what rights the agency may subsequently authorize for third parties. As there are no clear answers to these questions, the paper does not draw conclusions; it does, however, attempt to give some context and basis for how to interpret the FPL.

The next papers in this series will explore issues surrounding the legal authority underlying the public access policy, article versioning, and the policy’s interaction with institutional IP policies. Stay tuned for more!