Open Access and U.S. Federal Information Policy

Legal Pathways to Open Access White Paper No. 1

Authors Alliance and SPARC

 

Eric Harbeson [1]

 

Abstract

Federal agencies are directed, as a matter of U.S. 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.

 

Table of Contents

 

I. Introduction and Background 2

II. Basis in Copyright 4

A. Vesting and Authorship 5

1. Works made for hire 5

2. Joint authorship 7

B. Licensing 8

III. The Federal Purpose License 9

A. Regulatory History 9

B. Mechanics of the License 10

C. Scope of the Federal Purpose License 12

1. Federal purposes 13

2. Third party authorization 16

3. Open licenses under the FPL 19

4. Agency Implementations of the License 20

IV. Conclusion 21

     I.         Introduction and Background

This white paper discusses the legal application and implications of the Federal Purpose License (“FPL” or “the License”) in Federal public access policy. The White House Office of Science and Technology Policy (OSTP) has directed all grant-making agencies to make research supported by Federal grants freely available to the public immediately, broadening the reach of this policy to all Federally funded research and removing a previously available optional embargo period.[2] Some agencies and observers have suggested that the FPL, a provision granting agencies a right to use copyrighted works in certain ways, provides a sufficient framework within which to accomplish the task of providing public access to Federally funded research.[3] Others have raised concerns that the existing license is not appropriate for accomplishing the task. This paper provides legal background for the FPL and a framework for understanding the License, with intent to inform the present discussions.

Federal grants are the largest source of funding for academic research in the United States.[4] The FY2022 Federal budget included more than $90 billion for basic and applied research,[5] with the six highest-funded agencies each awarding more than $1 billion in research grants annually.[6] Those funds constitute roughly half of all funding for academic research.[7] Public grants fund researchers in producing new knowledge, which in turn benefits the general welfare, thus providing the public a return on its investment.

The public’s main connection to its investment in research is through publication of the results of the research it funds, most commonly in the form of articles in peer-reviewed journals. Traditionally, that publication was limited to a physical, printed form, which by its nature limited its reach to those with access to a subscription. However, the advent of digital publication technologies led to new opportunities for wider distribution and usage. In the last two decades, taking advantage of the virtually costless distribution that electronic publishing enables, scholars and publishers alike have experimented with new models of free distribution to expand the reach and impact of research, resulting in a burgeoning “open access” publishing landscape.[8] For many scholarly fields, open access is a predominant mode of publishing.[9]

The Federal government began applying some open access principles to Federally funded research in 2008 when, acting on a mandate from Congress, the National Institutes of Health began requiring that peer-reviewed publications arising from NIH-funded research be deposited in their online public access database, PubMed Central.[10] In 2013, the OSTP expanded the deposit mandate to apply to grants from all agencies with more than $100 million in research and development funds.[11] As a salve to the publishing industry, which was still adapting to the new landscape, both mandates allowed for an embargo period of no more than twelve months.[12] The embargo allowed publishers a limited period of exclusivity to encourage continued journal subscription, after which the public would get free access.

The result has been a spectacular benefit to the public in the form of availability of research, not only by scholars in the United States, but also by scholars and the general public throughout the world. In the years since the policy was implemented, more than eight million scholarly publications have been made available to the public for free, and those articles are read by more than three million people every day.[13]

A decade later, the OSTP updated its guidance on Federal public access policy.[14] In a memo—known as the “Nelson Memo,” after its author, deputy director Dr. Alondra Nelson—the OSTP directed that the policy now apply to all agencies that fund research, regardless of budget. Most significantly, the Nelson Memo directs agencies to develop new policies removing the embargo—Federally funded research should, moving forward, be made available immediately upon publication.[15]

The Nelson Memo has raised new questions about the best legal pathways to its implementation. As agencies revise their public access plans, the Federal Purpose License has gained renewed attention and has raised many questions. This paper addresses those questions. The first part provides the legal foundation in copyright law on which the license is built, and the second part provides historical context and analysis of the Federal Purpose License itself.

   II.         Basis in Copyright

The foundation of open access is copyright.[16] Authors’ ability to benefit from their work depends on their being able to reserve rights in a way that best serves their interest. For many authors—especially academic authors—those interests are not served by the traditional function of copyright, which is to restrict access and promote remuneration. To the contrary, Academic authors’ benefit most from removing barriers and providing the widest possible access. However, though they may not wish to restrict access, copyright allows them to protect other interests that are more important to them, such as attribution. This section provides a short background on the copyright law provisions relevant to and underlying the Federal Purpose License, and also introduces some of the legal questions that arise from the law.

In the United States, the source of all copyright law is the Constitution. Article I of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[17] Often known as the “Progress Clause,” this provision grants Congress the power to create a national system of intellectual property laws, ensuring uniform treatment throughout the country.

At the center of copyright is a bundle of rights, each of which the copyright holder has the sole and exclusive right to authorize. Generally, copyright law gives authors the exclusive rights to (1) make reproductions of a work, (2) create derivatives of the work, (3) distribute the work, (4) publicly perform the work, and (5) publicly display the work.[18] Those rights are infinitely divisible—that is, the owner of exclusive rights in a work is generally free to license any of those rights in any desired manner and with any desired restrictions.[19] The exclusive rights are also constrained by a number of exceptions and limitations, primarily to benefit the public.[20]

A. Vesting and Authorship

For a work to be subject to copyright, it must be an original work of authorship, and it must be fixed in a tangible medium of expression.[21] In the United States, and generally throughout the world, copyright protection attaches to any original work immediately upon fixation.[22] Though formalities such as registration and attachment of a copyright notice carry important benefits—notably including the ability to bring a legal enforcement action—works are protected by copyright automatically and immediately by operation of law.[23] Thus, at the moment a copyrightable work is fixed, the copyright holder possesses the entire bundle of exclusive rights.

The law provides that the author of a work is the initial owner of the copyright in the work.[24] The life of a copyrighted work is such that it will often have many copyright owners, but the author is the initial owner—the owner at the instant the work becomes copyrightable.[25] This first priority ownership gives authors the power to license the work at the moment the rights vest. It protects authors throughout the development of the work, allowing authors, for example, to submit works for peer review or to be considered for publication without ceding rights in the work. In addition, though ownership of a work may change many times over the life of a work, the author never changes. Thus, though a third party may acquire ownership of a work, the length of a copyright term remains fixed, determined based on the lifespan of the author. Though seemingly intuitive, determining the “author,” for copyright purposes, is complicated by the relationships between employers and employees and between multiple authors.[26]

1.     Works made for hire

Contrary to the plain language meaning of the term, sometimes the “author” is not the individual or individuals doing the actual creation of the work.[27] In the United States, if the creator is acting within the scope of her employment when creating the work, the creator’s employer, rather than the work’s creator, is considered the “author” of the work for copyright purposes unless the employer and employee have agreed otherwise in a signed, written document.[28] If, however, the creator is an independent contractor, she owns the work herself unless the work is specially commissioned for one of nine purposes and the parties agree in writing that it is a work made for hire.[29]

If the work is a “work made for hire,” the employer is treated as though it were itself the physical author. In such cases, the employer is the owner of all exclusive rights in the work at the instant of fixation. The employer can exclude anyone—even, perhaps counterintuitively, the employee/creator—from making use of the work, and can sue for infringement. In addition, some copyright calculations, such as the copyright duration, are in these cases determined based on the employer as the author.[30]

Whether an employer is the author of a work depends on whether the author was legally an “employee” and, if so, whether the work was created within the scope of the employee’s employment. To make that determination, the Supreme Court has ruled that the relevant authority is the general common law of agency.[31] Generally, the question turns on the extent of control the employer had on the putative employee.[32] The Court identified several factors that courts could consider when making a determination of whether an employment relationship exists, though that list is non-exhaustive, and not every factor is germane to every situation.[33]

The work-made-for-hire doctrine presents a particularly complicated question with respect to many works funded by Federal grants because those works are often produced by academic researchers at educational institutions. Traditionally, Academics have been considered the authors of at least their research products.[34] However, agency law principles suggest this may not be the case. Recent scholarship, case law, and institutional practices indicate the question of who owns academic works is very much up for debate, and the answer may affect the effectiveness or even validity of institutional intellectual property policies.[35] These issues will be taken up in a subsequent paper in this series. For purposes of this paper, it is sufficient to assume—as is almost certainly the case—that educational institutions are legally capable of entering into grant agreements containing mandatory licensing provisions for the use of works produced by faculty-employees under those grants.

2.     Joint authorship

If two or more people worked to create the work, they might be joint authors. When a work is created by joint authors, each author has full and independent ownership of the entire work. The copyright law here borrows from the law of real property and treats joint authors as tenants-in-common; that is, each joint author is immediately vested with the full bundle of exclusive rights. Each author possesses an independent right to authorize use of the work or to sue for infringement, and their only duty to each other is to account for their use.[36]

Joint authorship occurs when a work is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”[37] Recognizing this could result in many unintended joint authors (such as giving actors or costume designers complete ownership of motion pictures in which they participate), courts have narrowed the definition. In addition to the statutory requirements for joint authorship, courts generally require that each author’s contribution be copyrightable— that is, the contribution must on its own be sufficient to constitute an original work of authorship.[38] In addition, courts have found that—as with the work-made-for-hire doctrine—the degree of exercise of control is also a factor in determining whether a participant’s contribution rises to the level of joint authorship.[39]

Joint authorship principles are relevant to Federal public access mandates because Federally funded research is often—perhaps even always—the product of multiple potential “authors.” Under the joint authorship rules, a license—even an exclusive license—may be granted by one author without permission from, or even agreement of, the other joint authors. Federal grants sometimes fund only part of a research project; however, even where one author is grant-funded and the other is not, the grant-funded author’s issuing of a license in the completed work to her funder—in this case the Federal government—is valid even if the other authors have not consented.

B. Licensing

In the United States, copyright is an economic right.[40] The foundation of copyright law is a grant of exclusive rights to authors, for limited times, as an incentive for authors to create the works in the first place. The limited monopoly serves to allow authors an opportunity to gain from their often costly investment of time and resources in creating their works. Authors achieve this by licensing their work—allowing others to make use of the work in ways that would otherwise be infringing—possibly in exchange for value. Licenses can be as broad or as limited in scope as the parties’ imaginations allow.[41]

Copyright law explicitly recognizes one important licensing dichotomy, which is important in discussions of open access, namely the distinction between exclusive and non-exclusive licenses. Exclusive rights are ownership interests. When an author transfers exclusive rights to another party, she may be said to be transferring complete ownership of those rights, along with all of the rights associated with sole ownership, for the duration of the license. The holder of exclusive rights to a particular use of a work may exclude all others—including the original author—from making that use of the work, and may sue if those rights are infringed.[42] The owner of exclusive rights may sublicense those rights or transfer them to another party (including to their estate) without permission of the original licensor.[43]

By contrast, a non-exclusive license carries authorization to make use of a work, but it does not include the power to exclude others from making that use. The ownership interest in a non-exclusive license is limited to the power to make the authorized use. All other rights, including the right to issue subsequent licenses to the same use—both exclusive and non-exclusive—are retained by the licensor.

A non-exclusive license survives any subsequent transfers of exclusive rights if it is in writing and signed.[44] Normally, if an author has assigned exclusive rights in a work to another party, such as a publisher, she has exhausted her rights to authorize uses of the work in the future. However, even in that event, any prior non-exclusive license the author has agreed to remains valid, and the licensee may continue to rely on their license. This provision—the priority of previously issued non-exclusive licenses—is the foundation on which typical university open access policies and some funder public access mandates, including the Federal Purpose License, are built.

III.         The Federal Purpose License

Title 2 of the Code of Federal Regulations, section 200.315(b) provides that:

 

To the extent permitted by law, the recipient or subrecipient [of a grant] may copyright any work that is subject to copyright and was developed, or for which ownership was acquired, under a Federal award. The Federal agency reserves a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes and to authorize others to do so. This includes the right to require recipients and subrecipients to make such works available through agency-designated public access repositories.[45]

 

The reserved license has come to be known as the “Federal Purpose License.”[46]

 

In order to implement the Nelson Memo’s mandate to provide public access to grant-funded research, an agency must first obtain permission from the copyright holder to do so. The Federal Purpose License (“FPL” or the “License”) is one possible source for that permission. By securing the License at the inception of the grant agreement, the agency obtains its permission from the author of the work before any possible transfer of exclusive rights has occurred. Though agencies generally have the freedom to impose terms that require other licensing language to achieve the goals of the Nelson memo,[47] the FPL provides a useful default in that it provides uniformity across funding agencies, requires the creation of no new regulations, and is a longstanding condition of existing grants, thus requiring minimal changes from grantees.

A. Regulatory History

Though the Federal Purpose License is newly relevant to discussions of Federal public access policies in light of the Nelson Memo, it is in fact nearly 50 years old. The License was first introduced in 1976 in a document known as “Circular A-110.”[48] The Office of Management and Budget (OMB) promulgated several such circulars to provide instructions for management of Federal grants to both agencies and grantees.[49] Circular A-110 focused on grants to “institutions of higher education, hospitals, and other nonprofit organizations.” It replaced a portion of a previous document, “Federal Management Circular (FMC) 73-7.”[50]

Attachment N of Circular A-110 dealt with property management standards for assets acquired during or created through the use of Federal funds. Where property management standards in FMC 73-7 addressed only tangible property,[51] Attachment N introduced new language providing that, for copyrightable works, the agency reserves a “royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to others to use, the work for Government purposes.”[52] The “Government purposes” language was changed to “Federal purposes,” along with other minor changes, in 1993.[53]

In 2004, as part of a directive to simplify the grant regulations, the OMB consolidated all of its circulars, replacing them with a “Uniform Guidance,” which was codified as Title 2 of the Code of Federal Regulations.[54] The Federal Purpose License was placed in section 215.36(a). Later, the OMB revised Title 2, moving the Federal Purpose License to its present location in section 200.315(b).[55] Though the location of the FPL was shifted, the text of the language was unchanged from the 1993 version.

On October 1, 2024, the OMB revised the language of the Federal Purpose Language for the first time since 1993.[56] The new language makes two adjustments for clarity. First, the revision clarifies that the Federal Purpose License applies to both grant recipients and subrecipients. Second, the revision makes explicit that the license includes the agencies’ right to require authors to make their works available on agency-designated public access repositories.[57]

B. Mechanics of the License

The Federal Purpose License (FPL) is one provision in a comprehensive Uniform Guidance promulgated by the Office of Management and Budget to all Federal agencies that offer awards of competitive grants and cooperative agreements.[58] The Uniform Guidance operates as a set of model policies, to encourage uniformity of practice across the government. Agencies, in turn, adopt the policies, at which point they have the force and effect of a regulation.[59] All twenty-six Federal grant-making agencies have implemented the FPL in some form.[60] Agencies may adopt the Guidance as written, or they may adjust some or all of the Guidance provisions to suit their own needs or priorities.[61]

Under Sec. 200.315(b), agencies acknowledge that grant funding may produce copyrightable works, such as academic journal articles, and that in such cases all of the rights to copyright vest with the author of those works. Section 200.315(b) further provides that, as a condition of funding, the grant recipient agrees to grant the agency a license to make certain uses of any such works. However, the agency’s adoption of Sec. 200.315(b) does not by itself assign a license to the agency. To take effect, the FPL must be included in some manner in the award terms. The grant award is the written agreement that causes the regulation terms to adhere to the specific grant. Acceptance of the award causes the License to become legally binding on all parties.

Since agencies have discretion as to how to implement the Uniform Guidance, the actual terms of the license may depend on the agency. If an agency’s implementation of the FPL supersedes the language in the Uniform Guidance, the agency’s implementation is the controlling language.[62] In addition, the terms of the grant agreement may not be identical to the FPL, and in those cases the grant agreement terms are controlling. Some grant-making agencies simply incorporate the FPL into their terms by reference;[63] others spell out the license in the terms of the grant.[64] Still others could incorporate more specific text in the actual grant agreement other than the publicly available terms. For purposes of this paper, unless otherwise specified, the language in Section 200.315(b) is assumed.

Uniformity provides a number of benefits, both to grant recipients and grant-making agencies. For grant recipients, uniform implementation of the guidance means compliance is simpler. Uniform Guidance ensures scholars (and their institutional compliance officers) whose projects are funded by multiple agency grants need only comply with one set of rules, rather than potentially several, possibly conflicting rules. The priority of the license also ensures that recipients do not inadvertently break the terms of their license by transferring exclusive rights prior to depositing their work. Similarly, the non-exclusive license also protects agencies from a subsequent transfer of exclusive rights, allowing them to continue to provide public benefit to the work without risk of infringing the rights of any subsequent right holders.

For agencies, uniform guidance streamlines the regulatory process by creating a single regulation that is maintained outside of their agency. Agencies adopting the Uniform Guidance by reference, rather than adopting their own unique language, need not go through the process of updating their own regulations when the Uniform Guidance changes. When the OMB updated Sec. 200.315(b) in 2024 to specify the FPL’s application to deposit in government repositories, agencies that had simply adopted the FPL as written also saw their own implementation updated automatically, saving time and bureaucratic resources. By contrast, agencies that had codified Sec. 200.315(b) separately in their own regulations must follow the process for updating their regulation.[65]

From a copyright licensing perspective, the FPL is not functionally different from any other license agreement agreed to by two parties. The Federal agency invests in promising research for the public benefit, and the FPL provides a mechanism by which the agency ensures the public sees that benefit. The copyright holder—the author—cedes a limited amount of exclusivity to the other party—the agency—allowing them to make a limited use of the work, in exchange for something of value (grant funds). By comparison, a publisher’s agreement, for example, also involves the author ceding rights in exchange for value (in the form of publication and sometimes royalties), though publishers’ agreements normally involve transferring exclusive rights whereas the FPL allows authors to retain exclusive rights.

Importantly, the nature of the agreement protects the interests of both the agency and the grant recipient. The non-exclusive license means the author reserves all rights to her work. The author remains free to license the work to others, or to sell or otherwise divest any and all rights in the work. An author may, for example, subsequently opt to license the work to the public under an open license (such as a Creative Commons license), or may sign an agreement assigning ownership to a third party, such as a publisher. If the author transfers exclusive rights to a third party, the agency’s rights make the work available are protected by the first priority license.

C. Scope of the Federal Purpose License

The Federal Purpose License, as codified in Sec. 200.315(b), reserves for agencies certain rights to use products of Federal grants. Under the FPL, it is clear that agencies are authorized to reproduce and publish the work, including, under the most recent regulatory update, to designate a public access repository and publish the work in that repository.[66] The language of the FPL, however, leaves significant room for interpretation, leaving room for other applications that are not explicitly named but which are nonetheless permitted. The extent of those additional rights raises two important questions as to the interpretation of the FPL. The first concerns what else the agency itself has a right to do under the license, and the second concerns the extent of the agency’s ability to authorize subsequent, downstream uses of the work.

1.     Federal purposes

Sec. 200.315(b) provides that the agencies may “otherwise use the work for Federal purposes.” The language implicitly expands the extent of permitted uses beyond simply reproduction and publication, while also suggesting there is an outer limit to the authorization. Any uses beyond reproduction and publication that do not constitute “Federal purposes” are presumably outside the scope of the license.

The Uniform Guidance does not define the term, “Federal purposes,” leaving the extent of the term unclear. Some agencies have separately included the term in their implementations of the Guidance, or elsewhere have deployed the term with respect to copyrightable works, but none has provided a definition.[67] In addition, there is no precedent, either in case law or administrative rulings, that provides clarity.[68] When interpreting otherwise unclear text, courts consult a variety of linguistic and historical tools to provide an answer. These tools include plain text meaning, context within a larger framework, canons of statutory construction, or historical context.[69]

The plain meaning of “Federal purposes” is too broad to be helpful. On one end of the spectrum, a “Federal purpose” could simply be any use made by a Federal agency—i.e., that any use made by a Federal agency would by definition be for a Federal purpose. That interpretation provides almost limitless justification; yet, the placement of the phrase suggests it is attempting to provide some form of limitation. At the other end of the spectrum, a narrow reading of “Federal purposes” could mean “for internal Federal government use.” This interpretation might be supported by looking to the early wording of the FPL (in which the license was “for Government purposes”), but this, too, cannot withstand scrutiny. The FPL includes not only the right to reproduce but also to “publish,” and publication includes, by definition, making a work available to the public.[70] The recent update explicitly identifying one “Federal purpose”—namely, publication in public access repositories—is inconsistent with such a limited meaning. Moreover, a “government use only” understanding of the term would render the second part of the sentence—”and authorize others to do so”—virtually meaningless.[71]

Expanding the context to the entire Code of Federal Regulations, the phrase, “Federal purpose,” appears mostly as a device for distinguishing Federal purposes from state purposes, such determining when a Federal regulation is satisfied by some action under a state rule.[72] In other contexts, courts use the phrase in this manner with some frequency.[73] Courts also use the phrase when distinguishing state and Federal purposes in the context of litigating the Supremacy Clause.[74] One possible interpretation of “for Federal purposes” in the FPL, then, is to make clear that the right confers no rights on states. This could explain the language change from “government purposes” in 1993.[75] However, even if this were the rationale for the change of language, it does nothing to explain the authorized purposes. It would only clarify that the actors must be Federal actors. More importantly, interpreting the term as simply limiting use to Federal agencies would render it superfluous, since the license is inherently one given only to the Federal government in the first place, and there is no principle of law that might extend those rights to states as additional beneficiaries to Federal licenses.

The most satisfying solution to the problem of “Federal purposes” is to look to the agency’s authorization to enact the regulation in the first place. Every Federal regulation must ultimately trace to some authorization for the regulation. A detailed analysis of the scope of the agencies’ legal authority to enact the FPL is beyond the scope of this paper;[76] however, assuming that the agencies do have such authority, the “Federal purposes” envisioned by the FPL may simply be uses that fall within the scope of the agencies’ charge.

The purpose of the Uniform Guidance as a whole is clearly, in the end, to ensure consistent and efficient application of Federal grants, to avoid wasteful spending of public funds, and to ensure each grant complies with applicable statutory and executive policy requirements.[77] The FPL specifically aims to return some of the value of intellectual property created by investment of public funds back to the public. The idea is the agency pays for the work (at least in part) with public funds, as part of a public charge, and so it reserves rights for purposes consistent with and in furtherance of that charge. To the extent those purposes support a use, those uses are likely for “Federal purposes.”

This interpretation also helps with another element of the FPL. Section 200.315(b) specifies that agencies not only may reproduce and publish copyrightable works, but may also “otherwise use the work.” The phrase implicitly requires an interpretation that agency uses are not limited to reproduction and publication. However, the phrase also requires a limiting principle since clearly the regulation is not intended to give agencies permission to make any and all possible uses of the works. Interpreting the agency’s authorization for the regulation as containing the scope of “Federal purposes” provides one such possible limitation.

Under a traditional principle of statutory interpretation, a general term following an enumerated list should be interpreted as “confined to covering subjects comparable to the specifics it follows”[78] Following this principle, interpreting “Federal purposes” as being defined by the regulatory authorization suggests a number of possible uses that are consistent with this principle. In addition to the explicit authorization to deposit in an agency-designated repository,[79] a court might find that valid Federal purposes include distribution outside of repositories, such as in Federal public education campaigns; record keeping and curation functions such as digital preservation and format migration; data mining activities; and other activities by Federal agencies under the auspices of promoting and realizing the maximum benefit of Federal grant programs.

However, under this interpretation, agencies’ authorization under the license would not extend to uses that fall outside the purposes authorizing reserving the license. Even though the activities might otherwise be validly conducted by Federal agencies or officers, if they were held to be inconsistent with the purpose of the regulation, then under this approach they would be outside the scope of a “Federal purposes” as contemplated by the Guidance.

One difficulty in interpreting “Federal purposes” in this context is the changing nature of the purposes. The nature of the benefit contemplated has changed over time (and likely will continue to change) even while the regulatory text has remained mostly static. The purposes of the license in 1976 may not (or possibly could not) have contemplated online digital repositories, but with the recent change to the FPL language it clearly does now. The OSTP memos suggest the policy goals include maximizing the reach and impact of the research they fund, and encouraging others to build upon that research, such as the creation of derivative works. Researchers generally favor greater access and reuse rights, while restrictive exercises of rights under copyright often inhibits those activities.

The FPL affirms that grantees retain copyright over their authored works. Researchers produce their work by building on research that came before them. Given that a significant—perhaps the largest—population of users of the published work is the community of scholars conducting research of their own (many of whom will seek subsequent Federal grants), this raises important questions about the scope of uses agencies are permitted to authorize third-parties to make.

2.     Third party authorization

Agencies’ rights under the FPL are not limited to activities they themselves may undertake. Section 200.315(b) makes clear that agencies may also “authorize others” to make use of works subject to the License. The scope of that authorization is among the more controversial elements of the FPL, particularly among publishers and others who have expressed concerns that broad sublicensing under the FPL could exceed agencies’ regulatory or even Constitutional authority.[80] Those legal questions will be discussed in a future paper, but they cannot be addressed without first considering what uses the License might allow agencies to authorize.

At a minimum, the License must authorize more than simply accessing works. Because the License authorizes agencies to publish the works, and explicitly authorizes them to publish the works in public access repositories, the right of the public to simply call up and read the works is implicit in the Federal Purpose License even without the “authorize others” language. For this term to have meaning, it must logically extend beyond authorizing others to freely read what is already publicly available. However, beyond the requirement that there be something more, there are multiple possible answers to the question of just how much more.

The most restrictive interpretation of the “authorize others” provision might be that it allows the government only to outsource the process of making the works available. Under this interpretation, the third party would be permitted to “reproduce, publish, or otherwise use the work” only in support of the course of the agency’s own reproduction and publication activities. Reproducing and publishing works, especially in a digital environment, requires knowledge and expertise an agency might not routinely be able to accomplish in-house. This theory would view “authorize others” solely as means to allow the agency to hire outside entities to accomplish the task of managing a repository without subjecting their contractors to charges of copyright infringement.

One problem with this theory is that it is at odds with normal practice outside of the Federal government. Generally speaking, when interpreting a license, a blanket right to “authorize others to do so” would constitute authorization to sublicense the enumerated rights, mirroring the copyright holders’ own rights to license their exclusive rights.[81] Works published in digital public access repositories necessarily carry, at a minimum, some form of implied license to access the work. The nature of digital transmission means accessing works in digital repositories inherently causes the creation of new reproductions of the works when they are displayed on a screen or downloaded.[82] If the FPL authorized only outsourcing activities, the public access repositories would have greatly restricted utility.

In addition, the restrictive approach also does not realize the full potential of the Federal public access policy, since research does not happen in a vacuum. The Nelson Memo, for example, cites as a motivation the aim of conferring on the public the benefit of “new and cutting-edge research stemming from the support of Federal agencies.”[83] If the desire is to stimulate research, the government’s rights must exceed simple outsourcing. To stimulate research, the public that accesses the research must at a minimum, for example, be able to share and distribute the works with colleagues or students, so that the research may build on itself. Since the 2024 revision to the FPL was likely informed by the anticipated implementation of the Nelson Memo’s requirements, it seems unlikely the OMB would take such a restrictive position.

A second, more moderate theory might be that the “authorize others” language constitutes permission to sublicense. Under this theory, whatever rights the agency has under the FPL, it may pass along to users. The agency could still provide additional terms of service, such as attribution requirements, but the authorized uses must still be uses the agency itself is authorized to make. This likely would allow users to make uses such as sharing and distributing with colleagues or students, reposting in nongovernmental, subject-specific repositories. However, any uses that exceeded the agency’s own authorization would also exceed the downstream user’s authorization.

This interpretation would be effective at protecting the authors’ rights, since it ensures that every third party use can be traced directly to permission from the author. In the event of infringement, the author (or her subsequent assignees) alone, and not the agency, would have standing to bring legal actions against unauthorized uses. However, it still leaves vagueness in identifying just which uses the license permits third parties to make. The authorized third party uses would depend on interpreting “Federal purposes.”

The most permissive theory would hold that the agency may authorize uses by third parties that exceed its own authorization, Under this theory, even if “Federal purposes” were construed to mean the agency itself does not have rights to a given use, the agency might nonetheless authorize others to engage in those same uses. For example, an agency may wish to distribute the a work under some form of open license. Some such licenses permit broad reuse with a handful of restrictions, though nearly all at minimum require proper attribution as required by the author.[84] Other open licenses permit only noncommercial uses, and some entirely reserve the right to make derivative works. Regardless, even if the FPL were construed to be more limitative than an open license, this permissive theory would hold that an agency may select any such license for the distribution of Federally funded works to the public.

The permissive approach faces its own challenges. The text of the FPL indicates that the extent to which the agency can authorize others is limited; it provides that the agency can authorize others “to do so,” which appears to refer back to the agency’s own authority under the license. In addition, the permissive theory raises serious concerns about an important, if only implied, principle of the Federal purpose license, which is the author’s ultimate control over her work. Sec. 200.315(b) specifies that the author retains copyright in any works created under an award, but assigns a license for certain uses to the Federal government.[85] As discussed above, the agency’s rights to use the work are broad but presumably not unlimited. For example, if it were established (through litigation or agency interpretation) that derivative works were not included in “Federal purposes,” but also that the agency could issue a license to third parties permitting derivative works, then arguably the author would not have agreed to any derivative works made under the new license. Under this objection, “Federal purposes” should constrain both the agency and any subsequent third parties.

However, interpreting the third party authorization as extending beyond the agencies’ own authority may be supported by the policy justifications of the license. While our system of copyright is designed for royalty-seeking creators, and optimized to create artificial scarcity in order to facilitate monetary gain, academic authors—by far the largest group of Federal research grant recipients—are instead generally motivated by prestige (and tenure and promotion). The most valuable benefit copyright affords to scholarly authors is attribution. Academic authors almost never receive royalties for academic articles, while an increasing number of authors in fact license their works for broad reuse, requiring only attribution.[86]

Faculty at many academic institutions have voluntarily instituted open access deposit mandates, not to constrain authors but to promote their interests.[87] In some cases, those deposit mandates do authorize redistribution under open licenses.[88] Interpreting the FPL to permit such deposits may be justified by pointing to those mandates as support for the notion that authors themselves read the FPL as granting such authorization.

3.     Open licenses under the FPL

Advocates of Open Access have in some cases looked to the FPL to provide the agency permission not just to make works freely available for download in a Federal repository, but to make them available under an open license, such as some form of Creative Commons license.[89] This paper has offered some theories on interpretation of the scope of “Federal purposes,” or the extent to which third party authorizations may or may not exceed them, but actually establishing the boundaries of the license with respect to a particular desired use (such as distribution under an open license) would likely require clarification from the courts or agencies themselves.

Courts interpreting vague contract terms look to establish the meaning of the term as understood by the parties at the time of the agreement, not the time of the dispute.[90] If a court were to determine the parties understood the term in the same way, it would give effect to that meaning.[91] If they differed in their interpretation, the court would need to determine whose interpretation to accept. The court would look to numerous factors and circumstances in making that decision. A full application of the complexities of contract interpretation to the FPL is beyond the scope of this paper; however, there are a few important points to consider.[92]

First, it is important to note that the parties to whom the court is looking for understanding would not necessarily be the parties disputing the litigation. Since the FPL attaches at the instant the rights vest, the “parties,” for purposes of contract interpretation, would be the agency and the grant recipient. This would be true even if the litigation were brought by a third party that had obtained ownership of the work, such as a publisher. The third party would be the party claiming injury, but the meaning of the contract would be controlled by the agency’s and grantee’s understandings at the time of the award, not the third party’s.

Second, courts can consider parties’ normal course of business when interpreting vague terms. Each grant recipient is, at least in theory, different, but the grantor—in this case the agency—is always the same. Since the agency itself is the common link to all grants it issues, its understanding might be given more weight, especially if that understanding were documented prior to the award.

Third, and relatedly, a court interpreting the grantee’s understanding might be more likely to look to the community of grant recipients in the aggregate rather than to the individual. Since a court’s ruling would be at least persuasive for other courts interpreting the FPL, potentially affecting many thousands of authors, it would be unlikely to consider the FPL in the vacuum of a single set of facts. To the extent an agency’s interpretation were well-publicized and well-known by the community of grant applicants to the agency, that common understanding might prevail over a single author’s possibly outlying interpretation.[93]

Finally, for a moderating force on the agency’s interpretation, the court might consider the respective power of the two parties. Courts will, especially in close cases, often give weight to the interpretation favored by the party in the weaker bargaining position, which in this case clearly would be the grant recipient. In this light, the recipient’s understanding of the terms might be given greater weight, especially if that understanding were shared by a large swath of the agency’s grant recipients. An agency that takes a position that the FPL allows the agency to issue an open license (such as a Creative Commons license), and has provided a clear statement of its interpretation of the License in advance and has documented steps to ensure grantees understood that interpretation and its implications, might find itself in a strong position if that interpretation is later challenged.

4.     Agency Implementations of the License

As a final point, the above interpretation of the FPL applies only to the guidance as found in Section 200.315(b). As noted earlier, the Uniform Guidance supplied by the OMB acts as a template, one on which agencies are instructed to base their own grant terms and conditions. However, agencies are free to adapt the Uniform Guidance to meet their specific needs, provided they generally meet the minimum standards set out in the Guidance. Though most agencies have adopted Sec. 200.315(b) as written, some agencies have supplied their own provisions for managing intellectual property. In such cases, the agency’s specific regulation—not Sec. 200.315(b)—is the governing rule.

Two notable examples of agency-specific implementation are the Department of Labor and the Department of Education. Each of those agencies reserves for itself a license that explicitly allows for assigning open licenses. The Department of Labor’s implementation, for example, provides that:

In addition to the guidance set forth in 2 CFR 200.315(d), the Department of Labor requires intellectual property developed under a discretionary Federal award process to be in a format readily accessible and available for open licensing to the public. An open license allows subsequent users to copy, distribute, transmit and adapt the copyrighted work and requires such users to attribute the work in the manner specified by the recipient.[94]

 

Under this provision, the Department requires recipients of funding to grant it a license explicitly authorizing derivative works and other uses that may exceed the scope of Sec. 200.315(b). The Department of Education’s implementation also requires an open license in limited cases, which notably do not include peer-reviewed journal articles.[95] Both departments’ implementations have the virtue of expanding on, rather than replacing, Sec. 200.315. This ensures that the FPL remains in place as a base-line license, allowing both the agency and author to see the benefit of the Uniform Guidance.

These two implementations demonstrate how agencies may enhance the FPL and increase the certainty of the reserved license. If, for example, an agency wished to assign open licenses to the research it funded, and wanted to ensure it had authorization to do so, the agency has the option of following the regulatory process to expand on the License to specify those requirements.

IV.         Conclusion

The Federal Purpose License provides an elegant and time-tested means for securing value to the public in exchange for public funds, as well as for simplifying compliance for grant recipients (and their compliance officers). Some agencies explicitly have relied on the License in developing their plans to implement the 2022 Nelson memo. [96] However, whether agencies are explicit in relying on the FPL in their public access plans or not, every agency nonetheless enjoys the benefit of it, because every agency has implemented the Uniform Guidance. Thus, every agency has a legal right to implement the Nelson Memo using the FPL, whether or not they cite to the FPL by name.

This paper introduced the Federal Purpose License and its legal basis in copyright law, and also discussed possible interpretation of the License. Future papers in this series will address specific areas of concern that have been raised, both about the FPL and about Federal open access policies in general. Where this paper discusses the legal justification for the license itself, the second paper will examine the legal basis for the law and policy that enabled the FPL in the first place. The third paper will discuss the copyright issues surrounding different possible versions of papers that may be deposited in repositories under the FPL, and the fourth paper will look at institutional intellectual property policies, especially those at colleges and universities, and at the implications of the employer-employee relationship between institution and faculty member.

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