Authors Alliance and SPARC have released the second 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 discussed the “Federal Purpose License” and how it supports federal public access policies under the Nelson Memo. This second paper discusses legal landscape surrounding the Federal Purpose License and the public access policies in light of concerns that the policies are not permissible government actions.  The white paper explains why they are. 

The White Paper is available here. Supporting materials, previous papers, and other formats are available here.

In the last couple of months there has been a lot of change in the Federal grants space, but so far the public access policies, including the latest announced by the Nelson Memo, are still in place. Several agencies have already implemented their responses to the Nelson Memo through regulation; the rest are due to finish the task later this year.

For Federal agencies to act permissibly, their actions must be grounded in valid Congressional delegation of authority.  Congress can’t escape its limitations by delegating beyond its own authority, so to be valid delegation the actions also must be permissible actions for Congress.  The first part of the paper examines Congress’s constitutional power to provide grants for research and development, finding support under both the Spending and Progress clauses. 

The Federal Purpose License places a condition on acceptance of grant funds. Congress doesn’t have unlimited power to place conditions on grants, as established by the Supreme Court  in South Dakota v. Dole. However, the Federal Purpose License safely falls within the limitations placed by Dole.  In particular, the Federal Purpose License as a condition does not violate either the First Amendment’s Speech Clause or the Fifth Amendment’s Takings Clause.

The second part of the paper looks at Congress’s delegation of authority and the agencies’ development of the policies. The paper explains how Congress expressly—and permissibly—delegated power and obligation to create the prototype of the public access policy to the National Institutes of Health, and how subsequent application of the policy to the rest of the grant-making agencies is strongly supported by principles of implicit delegation, and were established through appropriate rulemaking. Though the recent case of Loper Bright Enterprises v. Raimondo may require agencies to satisfy a somewhat higher burden when defending their actions, the Supreme Court’s abandonment of the “Chevron doctrine” does nothing to change the permissibility of the public access policies or the use of the Federal Purpose License.

The next paper will examine the interaction between institutional intellectual property policies and federal public access policies, and the final paper will discuss issues surrounding article versioning. Watch this space for more!