April 18, 2025 • 59 mins
Guest: Eric Harbeson of Authors Alliance
First broadcast April 18 2025. Transcript at https://hdl.handle.net/1853/77544
Playlist here
Read our guest's white paper, The Legal Basis For U.S. Federal Public Access Mandates
"Open access can still happen whether there's a mandate or not."
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
[MUSIC PLAYING]
ERIC HARBESON (00:07):
That's the whole game here, right?
Taxpayers are paying millionsand millions of dollars a year
for research that benefits them.
There are reasonable peoplecan disagree on the policy.
Honestly, they can.
But from where I sit,that immediate access
to the stuff that we paidfor with our taxes, I mean,
(00:33):
that's the wholegame right there.
[MUSIC PLAYING]
CHARLIE BENNETT (00:59):
You are listening to WREK Atlanta,
and this is Lost in theStacks, the research library
rock-and-roll radio show.
I'm Charlie Bennett in thestudio with Marlee Givens
and Fred Rascoe.
Each week on Lost in theStacks, we pick a theme
and then use it to create amix of music and library talk.
Whichever you tune infor, we hope you dig it.
MARLEE GIVENS (01:18):
Our show today is called "The Legality
of open-access mandates.
FRED RASCOE (01:22):
Long-time listeners have
heard us discussfederal open access
mandates such as theWhite House OSTP, Nelson
Memo on previous episodes.
MARLEE GIVENS (01:31):
And information professionals
like ourselvessee these mandates
as an overall public good.
The public pays forresearch via taxes,
so the public should getaccess to that research.
Who would even thinkof challenging,
such a beneficial policy?
FRED RASCOE (01:45):
Who, indeed?
CHARLIE BENNETT: Who could think it? (01:46):
undefined
FRED RASCOE (01:47):
I don't know, but if they did,
they'd encounter somestern legal defenses.
Today, our topic is the legalbasis for federal open access
mandates.
We're going to talk about theConsolidated Appropriations
Act, the AdministrativeProcedure
Act, executiveactions, and we're
going to talk about a regulatorycode called the federal purpose
license.
CHARLIE BENNETT (02:06):
OK.
So after all thatstuff, clearly we
need some expert help withthat kind of discussion.
Lucky for us, ourguest today will
be Eric Harbeson, a scholarlypublishing legal fellow
for the organization,Authors Alliance,
who will tell us why openaccess mandates stand
on solid legal ground.
FRED RASCOE (02:25):
And our songs today are
about things thatprove to work well,
written agreements, goodprocesses, positive feedback,
other beneficial outcomesof open access policies.
CHARLIE BENNETT (02:35):
So much optimism, Fred.
FRED RASCOE (02:37):
Those outcomes are possible
because of the hard work ofa lot of people putting it
all together.
So let's start with a song aboutall the pieces coming together.
This is "Working on a GroovyThing," by Patti Drew,
right here on Lostin the Stacks.
[MUSIC PLAYING]
[VOCALIZING]
MARLEE GIVENS (03:00):
That was "Working on a Groovy Thing,"
by Patti Drew.
This is Lost in theStacks, and our guest today
is Eric Harbeson, alawyer and a librarian,
and the scholarlypublishing legal fellow
for Authors Alliance,an organization that
works with authorsto promote policies
that make knowledge and cultureavailable and discoverable.
FRED RASCOE (03:21):
We're talking to Eric
about the legal basis forfederal open access mandates.
I asked him to start by sharinga little bit of the background
of the issue, what openaccess mandates are,
and why they are needed.
ERIC HARBESON (03:34):
Sure.
So as a background,all of this starts
with the backdrop ofthe general problem
with open access orthe general problem
that open access wasresponding to rather, which
is that there's all of thisacademic scholarship that's
being written.
A lot of it is fundedby public money.
(03:56):
And most of the authors ofthese papers of this scholarship
are doing the work,not for royalties,
but as part of theiruniversity paid salary.
They submit the articles topublishers for no compensation.
And then the peer reviewprocess, likewise,
(04:17):
is part of the universityprofessor's service requirements
for tenure and promotion.
And so they also contributethat for no compensation
above their salary.
And then the publishers turnaround and sell the articles
that the universities havealready paid for twice now,
back to the universities.
(04:38):
And the costs have beengoing up so significantly
that it became necessaryto find some other way
to provide accessto these articles.
And so that's what spawnedthe open access movement.
And in 2008, thefederal government
(05:02):
got involved in open access whenCongress passed the Consolidated
Appropriations Act of 2008.
And in that act, so thisis an act of Congress.
It's a law passed and signed bythe President and everything.
And by the way, this was duringthe second Bush administration,
(05:24):
just noting that.
In that act, Congress requiredthe National Institutes
of Health to require as acondition of federal grant
funding that any kind ofscholarly articles that come out
(05:45):
of these grants bemade available for free
to the public in theNIH's repository, which
is called PubMed central.
That was the openingforay into open access
for the federal government.
Then in 2013, the Obamaadministration said,
(06:08):
this is working pretty well.
We're getting taxpayer accessto taxpayer funded research.
And so the White House Office ofScience and Technology Policy,
or OSTP, issued a memodirecting all of the agencies
that issue grants and havea research and development
(06:30):
budget over $100 millionto adopt the same policy.
Now, this time, it was anexecutive branch memo, not
an act of Congress.
But they basicallyapplied the same policy
to all of the big grantfunding agencies--
Department of Education,Department of Energy,
(06:52):
I don't remember--
FRED RASCOE (06:52):
National Science Foundation.
ERIC HARBESON (06:54):
NSF, yeah, National Science Foundation.
And so this was thefirst White House memo.
FRED RASCOE (07:04):
So it was a legislative act in 2008
to open up NationalInstitute of Health research.
It was a big success.
So the next step in2013, executive action
to replicate what wasenforced by Congress in 2008,
but for other agencies.
ERIC HARBESON (07:25):
Correct.
And this memo, the 2013memo, preserved this option
for an embargo period.
FRED RASCOE (07:33):
Embargo, meaning that it's not available
immediately on publication, thatit can be withheld for a year.
ERIC HARBESON (07:42):
Correct.
And then whathappened is in 2020,
we had the COVIDpandemic, of course.
And there was a hold, like abrief pause on the embargo.
We had this internationalemergency, medical emergency.
We needed public access topublic information right now.
(08:05):
We couldn't wait a year.
A year is an age in science.
So there was this temporarypause on the embargo period.
And it helped.
It worked really, really well.
And so now we're in 2022 andthe Biden administration says,
(08:27):
wow, that worked really well.
Let's expand it even more.
So now in 2022, theOSTP issued a new memo.
This is what's knownas the Nelson Memo,
because it was authoredby Alondra Nelson, then
the director of OSTP.
And that memo directedthe federal agencies,
(08:53):
all grant making agencies--
there are 26 grant makingagencies-- directed
to implement the same policy.
And-- and this is critical--
they said there'sno more embargo.
So before the NelsonMemo, agencies
are allowed to put a pauseon making the research
(09:16):
available for up to a year.
And this is largely to givethe publishers a head start,
so that they can have thearticles behind their paywall,
and then after a year, itgoes into public access.
(09:40):
Well, the NelsonMemo changed that.
The Nelson Memo said no, thisis taxpayer funded research.
And we're givingtaxpayers access
to the taxpayer funded researchright now moving forward.
So for all future grants afterthese policies are put in place,
there will be no more embargo.
CHARLIE BENNETT (10:01):
You are listening to Lost in the Stacks.
We'll be back withmore from Eric
Harbeson about federal openaccess mandates after a music
set.
MARLEE GIVENS (10:10):
And you can file this set under Z286.063.
[MUSIC PLAYING]
(SINGING) Fridaynight I'm on my way--
Here I am baby, signed,sealed, delivered.
(10:30):
I'm yours.
I don't want it to end.
"Signed Sealed, Delivered,"by Stevie Wonder.
Before that, we heard"Benefit" by Citrus.
And we started our set with"Success Story" by the Who.
Songs about things thatworked out really well.
[MUSIC PLAYING]
CHARLIE BENNETT (10:51):
This is Lost in the Stacks.
And we're speaking to EricHarbeson of Authors Alliance
about the legal basis forfederal open access mandates,
like the Nelson Memo from 2022.
In the last segment,we got some background
on federal open access mandates.
In this segment, we asked Ericto explain the legal principles
behind the ability forthe federal government
(11:12):
to make those mandates.
ERIC HARBESON (11:14):
So the way that this works
is as a condition of a grant,one of the terms and conditions,
there are a gazillion of theseconditions that are included
in every grant that theinstitution and the government
(11:35):
agree to.
One of the conditions is thatthe federal government gets
a non-exclusive licenseto reproduce, publish,
or otherwise use the workfor federal purposes--
and that's why it's thefederal purpose license--
(11:56):
and to authorizeothers to do so.
And as of 2024, thisregulation specifies
that it includesthe right to require
recipients andsubrecipients of grants
to make those works availablethrough agency designated
public access repositories.
(12:17):
So basically what's happeningis the government is reserving
this permission for itselfand legally because it's
a non-exclusive license,what that means is
that even if theauthor of the paper
(12:41):
subsequently assigns all oftheir rights to a publisher,
under the federal copyright lawa non-exclusive license survives
that transfer.
Think of it like an easement.
Right?
So I sell you myhouse but the city
(13:02):
has an easement on apart of the property
for like a sewerpipe or something.
Even though I've sold youall title to my house,
that easement survivesthat transfer.
And this non-exclusivelicense is
(13:23):
like an easement on the transferof this intellectual property.
And so that's where the federalpurpose license comes in.
FRED RASCOE (13:32):
Does that mean that when the memo went into effect,
that researchers who agreeto accept grant funding
agree to thatnon-exclusive license
in the terms oftheir grant funding
(13:54):
which may not have been thereprior to the Nelson and Holdren
Memos?
ERIC HARBESON: Yeah, so the process (14:01):
undefined
is the White Houseissues the policy,
and then the agencies gothrough the mandatory regulatory
process.
There's a law called theAdministrative Procedure
Act that governswhat agencies have
(14:22):
to do in order tocreate regulations
that have the force of law.
And so as soon as the WhiteHouse issues its memo,
the agencies, then eachof them has to take time
to go through the regulatoryprocess for itself,
and collect issuenotices, and collect
(14:42):
comments, and issue drafts, andthen accept comments on that.
And then they can issuea final regulation.
And what the Nelson Memo andthe Holdren Memo earlier, that's
the 2013 memo, what theNelson Memo did is it
said we expect the agencies tohave compliant policies in place
by some date.
(15:03):
And most of theagencies are expected
to have their public accesspolicies in place by the end
of this calendar year.
So as soon as the policies arein place, as soon as the issue
the agents issue theirfinal regulation,
that is when the NelsonMemo's provisions take effect.
(15:27):
So until that point, theprevious policy is in place.
Now, the previous policy forthe large grant making agencies
is still the policy ofthe 2013 Holdren Memo.
And that memo stillrequires the public access.
(15:48):
It just allows anoptional embargo.
The Nelson Memo policy takesaway the option for the embargo.
As soon as the agenciesimplement that,
then the new termsand conditions
(16:09):
will not permit an embargo.
FRED RASCOE (16:12):
So let me ask you this about the federal purpose
license.
Could a federal purpose licensebe used by any federal agency,
regardless of whether there'ssomething like a Nelson
Memo in effect or not?
Let's say that, thecurrent administration
(16:33):
rescinds the Nelson Memo fromthe previous administration.
Could the National ScienceFoundation still say, all right,
if you're a researcher receivingfunding from the National
Science Foundation, you have toagree that the federal purpose
license is in effectfor this and agree
that your research will bemade available publicly?
(16:57):
Can it stand on its ownor is it inextricably tied
or some other policy?
ERIC HARBESON (17:01):
Well, the license itself is not tied to the memo,
because again, rememberthe memo doesn't even
say how to get the permission.
It just says, wewant you to do this.
And the underlying license, thatwording, the federal purposes
(17:26):
license language, is all overthe Code of Federal Regulations
where this exists.
It's not just in grant fundingit's just one place where
this wording shows up.
So the federalpurpose license is
I don't think, going anywhere.
(17:48):
But the beauty of theAdministrative Procedure Act
is that agencies haveto go through a process
in order to changethe regulation.
The Nelson Memo said, wewant this policy in place.
But then as soon as theNelson Memo came out,
(18:08):
it had pretty much done its job.
At that point, the agenciesall started their process
of making the policy.
Most of them are well intothe process, and some of them
have already issued theirpolicies, their regulations that
were requested bythe Nelson Memo.
(18:31):
The administration canrescind the Nelson Memo
and the policiesare still in place.
In order to change thepolicy, once the agencies have
instituted these policies, theonly way to undo those policies
is to once again go throughthe regulatory process.
And so that would require, Imean, the administration could
(18:54):
say, not only arewe rescinding this,
but we are directing agencies tonow institute an embargo again.
I mean, they could do that.
MARLEE GIVENS (19:04):
You are listening to Lost in the Stacks,
and we'll be back with more fromEric Harbeson of the Authors
Alliance.
On the left side of the hour.
[MUSIC PLAYING]
[BASS GUITAR MUSIC]
JULIA FLANDERS (19:27):
Hi, I'm Julia Flanders,
making digital scholarship atthe Northeastern University
Libraries and the new lab fortexts, maps, and networks.
You're listening toLost in the Stacks,
the research libraryrock-and-roll radio
show on WREK Atlanta.
[MUSIC PLAYING]
(SINGING) Set the room on fire.
Follow your heart's desire.
Torch the place, and seeall that's familiar to you.
Dissolve--
CHARLIE BENNETT (19:47):
Today's show is called the legality
of open access mandates.
There are many in thelibrary profession worried
about the possibility that openaccess mandates like the Nelson
Memo can be reversed,particularly given
the rapid and indiscriminatenature of cuts
coming from the White House.
At the 2024Charleston conference,
(20:07):
just days after the lastpresidential election,
Emily Gore, DeputyUniversity Librarian at UGA,
addressed this feeling of worryabout open access efforts.
Here's what she had to say,condensed slightly in editing.
[MUSIC PLAYING]
EMILY GORE (20:28):
I'll be honest in telling you
that in the past weeksince the election,
I've wondered if all theseefforts actually still make
sense.
So if you've wondered the samething about your commitments
or efforts, know thatyou're not alone.
The good news is that despitesome initial skepticism,
(20:48):
I do think theseefforts make sense.
Will the Nelson Memo be undone?
Possibly.
It is a memo, and it'snot an executive order.
But still, there isa likelihood that
timelines and/or course ofaction could be reversed.
It's hard to say withany certainty right now.
(21:11):
I'll end by saying this.
I do think policyhelps change practice.
The Holdren Memo,issued in 2013 has
had an impact on currentagency public access policies,
and we have seen those policiescontinue to evolve over time.
The Nelson Memo movesthe needle even further.
Whether it remainsintact or not,
(21:33):
I think there is anexpectation particularly
in the sciences and socialsciences on my campus
and likely on yours to sharepublications and data openly.
CHARLIE BENNETT: Open access can still (21:52):
undefined
happen whether there'sa mandate or not.
There just needs to be the will.
File this set underQ127.U6 no dot D78.
[MUSIC PLAYING]
(22:13):
That was "Contract"by Gang of Four.
Before that, "Everything HasGot to be Free," by Kim Carnes.
Songs about written agreementsand positive outcomes.
[MUSIC PLAYING]
MARLEE GIVENS (22:28):
This is Lost in the Stacks on our show today is
about federal open accessmandates such as the White House
OSTP, quote, "NelsonMemo," unquote,
which we've been discussing inprevious segments and on several
previous episodes.
FRED RASCOE (22:43):
Since the Nelson Memo is obviously a memo and not
an executive order, not alaw, we began this segment
by asking Eric a questionabout whether the memo is
subject to the whims ofthe current White House
Administration.
Obviously, there's a lot ofrescinding of previous policies,
(23:03):
and lots of executiveorder action
coming out of thecurrent administration.
And so I'm wondering how sturdythe outcomes of the Nelson Memo
are in face of that.
(23:25):
Is the federalpurpose license kind
of a pillar in itssturdiness, or are there
other factors that could leadus down a different road?
ERIC HARBESON (23:39):
Well, I mean, the administration
is the administration,and the administration
gets to set its policy.
That said, I mean,like I was saying,
it can't rescind thepolicy overnight.
The administration could issuea new policy if they wanted to.
(24:07):
I don't want to speculate toomuch about whether they will,
but I will say thattaxpayer access to taxpayer
funded research isnot a partisan issue.
This is a fiscal principle thatisn't Democrat or Republican.
(24:28):
The thing about executivepolicy regulations
is, sure, they canchange their mind.
It just they can'tchange it overnight.
And Congress can always goin and say, you know what?
We don't like this policyor we want more of this,
like they did with the 2008 law.
(24:50):
They said, we want this policy.
Congress could go in andchange it or make it stronger
if they wanted to, but it wouldtake an affirmative action
by the administration to change.
The Nelson Memo is no longeron the White House website.
(25:11):
That's a pretty normal thing.
A new administration comes in.
FRED RASCOE (25:21):
They have their own content.
ERIC HARBESON (25:23):
Right.
They put their own content up.
The Holdren Memo was not onthe Biden White House website
either.
This is just the normal change.
They're archived underbidenwhitehouse.gov
or archives.gov orobamawhitehouse.gov.
And they're still therein the historical record.
(25:46):
But the real magic happens inthe administrative process,
when each agency goes throughits long process of soliciting
feedback and creatingthe regulation.
That stuff is still going on.
(26:07):
I don't know.
The signs pointto it continuing.
FRED RASCOE (26:11):
So one other thing that I
wanted to ask whileI've got you on
is I know that you've writtena couple of white papers
about the federal purposelicense and federal open access,
and you said that there'smore coming in the series.
What are the other aspects thatyou're going to write about?
(26:35):
What needs to bea focus for people
that are interested in knowingthe legal reasons behind why
this is a valid policy forthese federal agencies?
ERIC HARBESON (26:50):
So the first two papers
pretty much encompassthe legal basis
from the federalgovernment side.
The policy of usingthe federal purpose
license for the public accesspolicies is the first paper.
(27:11):
The policies themselves are thesubject of the second paper.
The next paper is goingto be a little bit more
focused on the institutionsand the faculty authors,
usually academicfaculty authors,
(27:31):
and looking at institutionalintellectual property policies.
There's thisquestion in copyright
and academic authorship of whoactually is the owner of faculty
(27:55):
authored research.
Is it the facultymember herself or is it
the institution under thework-for-hire doctrine?
And it turns out that canimpact the effectiveness
(28:15):
of this first priority licensethat the federal purpose
license is.
If the institution issigning the grant agreement
and the institution doesn'thave rights to give,
then it can't give those rights.
If the institution doeshave the rights to give,
then they can give those rights.
So there's work that needsto be done in sorting out
(28:37):
how institutions havethe rights to give
to the federal government inorder to activate that license.
And then the fourth paperwill be looking the ontology
of academic research.
There are all of thesedifferent stages of publication
(28:59):
of a peer-reviewed article.
There are the articles, theversion submitted for review.
There's the version thatcomes after the peer review,
but before the publisherhas typeset it.
There's the version thatis the version of record.
And looking at how the federalpurpose license applies
(29:24):
to each of those stages ofauthorship and scholarship,
and which versions satisfy theneed for the taxpayer access
to taxpayer-funded research.
FRED RASCOE (29:40):
After those papers come out,
I think it would be greatto have you back on.
ERIC HARBESON (29:45):
I would enjoy that.
FRED RASCOE (29:46):
Well, maybe we'll have a different idea of what's
going on in thecurrent administration
and what the research fundingoutlook and support looks like.
ERIC HARBESON (29:56):
There is that.
FRED RASCOE (29:59):
Eric, Thank you so much for joining us and being
on our show today.
ERIC HARBESON (30:04):
Thank you.
It was a pleasure.
MARLEE GIVENS (30:07):
This is Lost in the Stacks.
And our guest todaywas Eric Harbeson.
He's a librarian, a lawyer,and the scholarly publishing
legal fellow forAuthors Alliance.
CHARLIE BENNETT (30:17):
You can file this next set under Code
of Federal Regulations,Title II, Section 200.315(b).
[MUSIC PLAYING]
MARLEE GIVENS (30:41):
That was "Same Mother Of Pearl," by Sharkboy.
CHARLIE BENNETT (30:45):
I'm putting that record on
as soon as I getback to the office.
MARLEE GIVENS (30:48):
All right.
And before that, "TheAuthor in Her Ear,"
by the Strapping Fieldhands.
Songs about authorship,process, and feedback.
[MUSIC PLAYING]
FRED RASCOE (31:06):
Today's show was called the Legality
of Open Access Mandates.
My conversation with EricHarbeson of Authors Alliance
continued on for abit longer than we
could fit into oneepisode, and so I
want to play one more little bitfrom the end of our conversation
that we didn't have time toinclude in the main interview.
I wanted to includethis specifically
(31:27):
because it reallysums up why mandating
open access to researchmakes so much sense.
[MUSIC PLAYING]
ERIC HARBESON (31:37):
From the author's perspective,
there's no benefit to havingyour stuff behind a paywall.
Academic authors,the exclusive rights
don't help them because theyare not looking for royalties.
(31:58):
They benefit frompeople citing to them,
people reading their stuff.
The coin of therealm in the academy
is the impact of yourresearch and publication.
Fewer people read your stuffif it's behind a paywall.
FRED RASCOE (32:15):
No one publishes specifically
to publish with, well, aspecific publishing company.
I was going to say I was goingto name one or two, but I won't.
Yeah.
ERIC HARBESON (32:28):
I think I heard you anyway.
[LAUGHS]
[MUSIC PLAYING]
CHARLIE BENNETT (32:41):
Fred, I think I heard the names also.
So why don't youroll the credits?
But let's be careful, shall we?
[MUSIC PLAYING](SINGING) Look out!
Lost in the Stacksis a collaboration
between WREK Atlanta andthe Georgia Tech Library,
written and produced by AlexMcGee, Charlie Bennett, Fred
(33:02):
Rascoe and Marlee Givens.
FRED RASCOE (33:04):
Legal counsel and an electric toothbrush,
which I need.
I was told todaythat I needed that,
so thanks, Philip, provided bythe Burrus Intellectual Property
Law Group in Atlanta, Georgia.
CHARLIE BENNETT (33:14):
Philip is branching out, huh?
MARLEE GIVENS (33:16):
Yep.
A special thanksto Eric for being
on the show, to open accessoptimists everywhere,
and thanks, as always, toeach and every one of you
for listening.
CHARLIE BENNETT (33:26):
Our web page is library.gatech.e
du/lostinthestacks, where you'llfind our most recent episode,
a link to our podcastfeed, and a web form
if you want to getin touch with us.
MARLEE GIVENS (33:38):
Next week, we'll hear about how
to train your algorithm.
It's only a little easierthan training a dragon.
FRED RASCOE (33:45):
It's time for our last song today.
Federal open accesspolicy mandates may
be on solid legalfooting, but who
knows what futurefederal government
policies may have in store?
CHARLIE BENNETT (33:57):
No one here.
FRED RASCOE (33:58):
Hopefully, successful open access work
won't be undone byfuture executive action.
So let's close with "GovernmentPolicy," by The Expelled,
right here on Lostin the Stacks.
CHARLIE BENNETT (34:11):
I'm sensing some irony to this last song.
[MUSIC PLAYING]
(SINGING) And theanswer to this cry,
the promise of a better life.
[MUSIC PLAYING]
ERIC HARBESON (00:07):
That's the whole game here, right?
Taxpayers are paying millionsand millions of dollars a year
for research that benefits them.
There are reasonable peoplecan disagree on the policy.
Honestly, they can.
But from where I sit,that immediate access
to the stuff that we paidfor with our taxes, I mean,
(00:33):
that's the wholegame right there.
[MUSIC PLAYING]
CHARLIE BENNETT (00:59):
You are listening to WREK Atlanta,
and this is Lost in theStacks, the research library
rock-and-roll radio show.
I'm Charlie Bennett in thestudio with Marlee Givens
and Fred Rascoe.
Each week on Lost in theStacks, we pick a theme
and then use it to create amix of music and library talk.
Whichever you tune infor, we hope you dig it.
MARLEE GIVENS (01:18):
Our show today is called "The Legality
of open-access mandates.
FRED RASCOE (01:22):
Long-time listeners have
heard us discussfederal open access
mandates such as theWhite House OSTP, Nelson
Memo on previous episodes.
MARLEE GIVENS (01:31):
And information professionals
like ourselvessee these mandates
as an overall public good.
The public pays forresearch via taxes,
so the public should getaccess to that research.
Who would even thinkof challenging,
such a beneficial policy?
FRED RASCOE (01:45):
Who, indeed?
CHARLIE BENNETT: Who could think it? (01:46):
undefined
FRED RASCOE (01:47):
I don't know, but if they did,
they'd encounter somestern legal defenses.
Today, our topic is the legalbasis for federal open access
mandates.
We're going to talk about theConsolidated Appropriations
Act, the AdministrativeProcedure
Act, executiveactions, and we're
going to talk about a regulatorycode called the federal purpose
license.
CHARLIE BENNETT (02:06):
OK.
So after all thatstuff, clearly we
need some expert help withthat kind of discussion.
Lucky for us, ourguest today will
be Eric Harbeson, a scholarlypublishing legal fellow
for the organization,Authors Alliance,
who will tell us why openaccess mandates stand
on solid legal ground.
FRED RASCOE (02:25):
And our songs today are
about things thatprove to work well,
written agreements, goodprocesses, positive feedback,
other beneficial outcomesof open access policies.
CHARLIE BENNETT (02:35):
So much optimism, Fred.
FRED RASCOE (02:37):
Those outcomes are possible
because of the hard work ofa lot of people putting it
all together.
So let's start with a song aboutall the pieces coming together.
This is "Working on a GroovyThing," by Patti Drew,
right here on Lostin the Stacks.
[MUSIC PLAYING]
[VOCALIZING]
MARLEE GIVENS (03:00):
That was "Working on a Groovy Thing,"
by Patti Drew.
This is Lost in theStacks, and our guest today
is Eric Harbeson, alawyer and a librarian,
and the scholarlypublishing legal fellow
for Authors Alliance,an organization that
works with authorsto promote policies
that make knowledge and cultureavailable and discoverable.
FRED RASCOE (03:21):
We're talking to Eric
about the legal basis forfederal open access mandates.
I asked him to start by sharinga little bit of the background
of the issue, what openaccess mandates are,
and why they are needed.
ERIC HARBESON (03:34):
Sure.
So as a background,all of this starts
with the backdrop ofthe general problem
with open access orthe general problem
that open access wasresponding to rather, which
is that there's all of thisacademic scholarship that's
being written.
A lot of it is fundedby public money.
(03:56):
And most of the authors ofthese papers of this scholarship
are doing the work,not for royalties,
but as part of theiruniversity paid salary.
They submit the articles topublishers for no compensation.
And then the peer reviewprocess, likewise,
(04:17):
is part of the universityprofessor's service requirements
for tenure and promotion.
And so they also contributethat for no compensation
above their salary.
And then the publishers turnaround and sell the articles
that the universities havealready paid for twice now,
back to the universities.
(04:38):
And the costs have beengoing up so significantly
that it became necessaryto find some other way
to provide accessto these articles.
And so that's what spawnedthe open access movement.
And in 2008, thefederal government
(05:02):
got involved in open access whenCongress passed the Consolidated
Appropriations Act of 2008.
And in that act, so thisis an act of Congress.
It's a law passed and signed bythe President and everything.
And by the way, this was duringthe second Bush administration,
(05:24):
just noting that.
In that act, Congress requiredthe National Institutes
of Health to require as acondition of federal grant
funding that any kind ofscholarly articles that come out
(05:45):
of these grants bemade available for free
to the public in theNIH's repository, which
is called PubMed central.
That was the openingforay into open access
for the federal government.
Then in 2013, the Obamaadministration said,
(06:08):
this is working pretty well.
We're getting taxpayer accessto taxpayer funded research.
And so the White House Office ofScience and Technology Policy,
or OSTP, issued a memodirecting all of the agencies
that issue grants and havea research and development
(06:30):
budget over $100 millionto adopt the same policy.
Now, this time, it was anexecutive branch memo, not
an act of Congress.
But they basicallyapplied the same policy
to all of the big grantfunding agencies--
Department of Education,Department of Energy,
(06:52):
I don't remember--
FRED RASCOE (06:52):
National Science Foundation.
ERIC HARBESON (06:54):
NSF, yeah, National Science Foundation.
And so this was thefirst White House memo.
FRED RASCOE (07:04):
So it was a legislative act in 2008
to open up NationalInstitute of Health research.
It was a big success.
So the next step in2013, executive action
to replicate what wasenforced by Congress in 2008,
but for other agencies.
ERIC HARBESON (07:25):
Correct.
And this memo, the 2013memo, preserved this option
for an embargo period.
FRED RASCOE (07:33):
Embargo, meaning that it's not available
immediately on publication, thatit can be withheld for a year.
ERIC HARBESON (07:42):
Correct.
And then whathappened is in 2020,
we had the COVIDpandemic, of course.
And there was a hold, like abrief pause on the embargo.
We had this internationalemergency, medical emergency.
We needed public access topublic information right now.
(08:05):
We couldn't wait a year.
A year is an age in science.
So there was this temporarypause on the embargo period.
And it helped.
It worked really, really well.
And so now we're in 2022 andthe Biden administration says,
(08:27):
wow, that worked really well.
Let's expand it even more.
So now in 2022, theOSTP issued a new memo.
This is what's knownas the Nelson Memo,
because it was authoredby Alondra Nelson, then
the director of OSTP.
And that memo directedthe federal agencies,
(08:53):
all grant making agencies--
there are 26 grant makingagencies-- directed
to implement the same policy.
And-- and this is critical--
they said there'sno more embargo.
So before the NelsonMemo, agencies
are allowed to put a pauseon making the research
(09:16):
available for up to a year.
And this is largely to givethe publishers a head start,
so that they can have thearticles behind their paywall,
and then after a year, itgoes into public access.
(09:40):
Well, the NelsonMemo changed that.
The Nelson Memo said no, thisis taxpayer funded research.
And we're givingtaxpayers access
to the taxpayer funded researchright now moving forward.
So for all future grants afterthese policies are put in place,
there will be no more embargo.
CHARLIE BENNETT (10:01):
You are listening to Lost in the Stacks.
We'll be back withmore from Eric
Harbeson about federal openaccess mandates after a music
set.
MARLEE GIVENS (10:10):
And you can file this set under Z286.063.
[MUSIC PLAYING]
(SINGING) Fridaynight I'm on my way--
Here I am baby, signed,sealed, delivered.
(10:30):
I'm yours.
I don't want it to end.
"Signed Sealed, Delivered,"by Stevie Wonder.
Before that, we heard"Benefit" by Citrus.
And we started our set with"Success Story" by the Who.
Songs about things thatworked out really well.
[MUSIC PLAYING]
CHARLIE BENNETT (10:51):
This is Lost in the Stacks.
And we're speaking to EricHarbeson of Authors Alliance
about the legal basis forfederal open access mandates,
like the Nelson Memo from 2022.
In the last segment,we got some background
on federal open access mandates.
In this segment, we asked Ericto explain the legal principles
behind the ability forthe federal government
(11:12):
to make those mandates.
ERIC HARBESON (11:14):
So the way that this works
is as a condition of a grant,one of the terms and conditions,
there are a gazillion of theseconditions that are included
in every grant that theinstitution and the government
(11:35):
agree to.
One of the conditions is thatthe federal government gets
a non-exclusive licenseto reproduce, publish,
or otherwise use the workfor federal purposes--
and that's why it's thefederal purpose license--
(11:56):
and to authorizeothers to do so.
And as of 2024, thisregulation specifies
that it includesthe right to require
recipients andsubrecipients of grants
to make those works availablethrough agency designated
public access repositories.
(12:17):
So basically what's happeningis the government is reserving
this permission for itselfand legally because it's
a non-exclusive license,what that means is
that even if theauthor of the paper
(12:41):
subsequently assigns all oftheir rights to a publisher,
under the federal copyright lawa non-exclusive license survives
that transfer.
Think of it like an easement.
Right?
So I sell you myhouse but the city
(13:02):
has an easement on apart of the property
for like a sewerpipe or something.
Even though I've sold youall title to my house,
that easement survivesthat transfer.
And this non-exclusivelicense is
(13:23):
like an easement on the transferof this intellectual property.
And so that's where the federalpurpose license comes in.
FRED RASCOE (13:32):
Does that mean that when the memo went into effect,
that researchers who agreeto accept grant funding
agree to thatnon-exclusive license
in the terms oftheir grant funding
(13:54):
which may not have been thereprior to the Nelson and Holdren
Memos?
ERIC HARBESON: Yeah, so the process (14:01):
undefined
is the White Houseissues the policy,
and then the agencies gothrough the mandatory regulatory
process.
There's a law called theAdministrative Procedure
Act that governswhat agencies have
(14:22):
to do in order tocreate regulations
that have the force of law.
And so as soon as the WhiteHouse issues its memo,
the agencies, then eachof them has to take time
to go through the regulatoryprocess for itself,
and collect issuenotices, and collect
(14:42):
comments, and issue drafts, andthen accept comments on that.
And then they can issuea final regulation.
And what the Nelson Memo andthe Holdren Memo earlier, that's
the 2013 memo, what theNelson Memo did is it
said we expect the agencies tohave compliant policies in place
by some date.
(15:03):
And most of theagencies are expected
to have their public accesspolicies in place by the end
of this calendar year.
So as soon as the policies arein place, as soon as the issue
the agents issue theirfinal regulation,
that is when the NelsonMemo's provisions take effect.
(15:27):
So until that point, theprevious policy is in place.
Now, the previous policy forthe large grant making agencies
is still the policy ofthe 2013 Holdren Memo.
And that memo stillrequires the public access.
(15:48):
It just allows anoptional embargo.
The Nelson Memo policy takesaway the option for the embargo.
As soon as the agenciesimplement that,
then the new termsand conditions
(16:09):
will not permit an embargo.
FRED RASCOE (16:12):
So let me ask you this about the federal purpose
license.
Could a federal purpose licensebe used by any federal agency,
regardless of whether there'ssomething like a Nelson
Memo in effect or not?
Let's say that, thecurrent administration
(16:33):
rescinds the Nelson Memo fromthe previous administration.
Could the National ScienceFoundation still say, all right,
if you're a researcher receivingfunding from the National
Science Foundation, you have toagree that the federal purpose
license is in effectfor this and agree
that your research will bemade available publicly?
(16:57):
Can it stand on its ownor is it inextricably tied
or some other policy?
ERIC HARBESON (17:01):
Well, the license itself is not tied to the memo,
because again, rememberthe memo doesn't even
say how to get the permission.
It just says, wewant you to do this.
And the underlying license, thatwording, the federal purposes
(17:26):
license language, is all overthe Code of Federal Regulations
where this exists.
It's not just in grant fundingit's just one place where
this wording shows up.
So the federalpurpose license is
I don't think, going anywhere.
(17:48):
But the beauty of theAdministrative Procedure Act
is that agencies haveto go through a process
in order to changethe regulation.
The Nelson Memo said, wewant this policy in place.
But then as soon as theNelson Memo came out,
(18:08):
it had pretty much done its job.
At that point, the agenciesall started their process
of making the policy.
Most of them are well intothe process, and some of them
have already issued theirpolicies, their regulations that
were requested bythe Nelson Memo.
(18:31):
The administration canrescind the Nelson Memo
and the policiesare still in place.
In order to change thepolicy, once the agencies have
instituted these policies, theonly way to undo those policies
is to once again go throughthe regulatory process.
And so that would require, Imean, the administration could
(18:54):
say, not only arewe rescinding this,
but we are directing agencies tonow institute an embargo again.
I mean, they could do that.
MARLEE GIVENS (19:04):
You are listening to Lost in the Stacks,
and we'll be back with more fromEric Harbeson of the Authors
Alliance.
On the left side of the hour.
[MUSIC PLAYING]
[BASS GUITAR MUSIC]
JULIA FLANDERS (19:27):
Hi, I'm Julia Flanders,
making digital scholarship atthe Northeastern University
Libraries and the new lab fortexts, maps, and networks.
You're listening toLost in the Stacks,
the research libraryrock-and-roll radio
show on WREK Atlanta.
[MUSIC PLAYING]
(SINGING) Set the room on fire.
Follow your heart's desire.
Torch the place, and seeall that's familiar to you.
Dissolve--
CHARLIE BENNETT (19:47):
Today's show is called the legality
of open access mandates.
There are many in thelibrary profession worried
about the possibility that openaccess mandates like the Nelson
Memo can be reversed,particularly given
the rapid and indiscriminatenature of cuts
coming from the White House.
At the 2024Charleston conference,
(20:07):
just days after the lastpresidential election,
Emily Gore, DeputyUniversity Librarian at UGA,
addressed this feeling of worryabout open access efforts.
Here's what she had to say,condensed slightly in editing.
[MUSIC PLAYING]
EMILY GORE (20:28):
I'll be honest in telling you
that in the past weeksince the election,
I've wondered if all theseefforts actually still make
sense.
So if you've wondered the samething about your commitments
or efforts, know thatyou're not alone.
The good news is that despitesome initial skepticism,
(20:48):
I do think theseefforts make sense.
Will the Nelson Memo be undone?
Possibly.
It is a memo, and it'snot an executive order.
But still, there isa likelihood that
timelines and/or course ofaction could be reversed.
It's hard to say withany certainty right now.
(21:11):
I'll end by saying this.
I do think policyhelps change practice.
The Holdren Memo,issued in 2013 has
had an impact on currentagency public access policies,
and we have seen those policiescontinue to evolve over time.
The Nelson Memo movesthe needle even further.
Whether it remainsintact or not,
(21:33):
I think there is anexpectation particularly
in the sciences and socialsciences on my campus
and likely on yours to sharepublications and data openly.
CHARLIE BENNETT: Open access can still (21:52):
undefined
happen whether there'sa mandate or not.
There just needs to be the will.
File this set underQ127.U6 no dot D78.
[MUSIC PLAYING]
(22:13):
That was "Contract"by Gang of Four.
Before that, "Everything HasGot to be Free," by Kim Carnes.
Songs about written agreementsand positive outcomes.
[MUSIC PLAYING]
MARLEE GIVENS (22:28):
This is Lost in the Stacks on our show today is
about federal open accessmandates such as the White House
OSTP, quote, "NelsonMemo," unquote,
which we've been discussing inprevious segments and on several
previous episodes.
FRED RASCOE (22:43):
Since the Nelson Memo is obviously a memo and not
an executive order, not alaw, we began this segment
by asking Eric a questionabout whether the memo is
subject to the whims ofthe current White House
Administration.
Obviously, there's a lot ofrescinding of previous policies,
(23:03):
and lots of executiveorder action
coming out of thecurrent administration.
And so I'm wondering how sturdythe outcomes of the Nelson Memo
are in face of that.
(23:25):
Is the federalpurpose license kind
of a pillar in itssturdiness, or are there
other factors that could leadus down a different road?
ERIC HARBESON (23:39):
Well, I mean, the administration
is the administration,and the administration
gets to set its policy.
That said, I mean,like I was saying,
it can't rescind thepolicy overnight.
The administration could issuea new policy if they wanted to.
(24:07):
I don't want to speculate toomuch about whether they will,
but I will say thattaxpayer access to taxpayer
funded research isnot a partisan issue.
This is a fiscal principle thatisn't Democrat or Republican.
(24:28):
The thing about executivepolicy regulations
is, sure, they canchange their mind.
It just they can'tchange it overnight.
And Congress can always goin and say, you know what?
We don't like this policyor we want more of this,
like they did with the 2008 law.
(24:50):
They said, we want this policy.
Congress could go in andchange it or make it stronger
if they wanted to, but it wouldtake an affirmative action
by the administration to change.
The Nelson Memo is no longeron the White House website.
(25:11):
That's a pretty normal thing.
A new administration comes in.
FRED RASCOE (25:21):
They have their own content.
ERIC HARBESON (25:23):
Right.
They put their own content up.
The Holdren Memo was not onthe Biden White House website
either.
This is just the normal change.
They're archived underbidenwhitehouse.gov
or archives.gov orobamawhitehouse.gov.
And they're still therein the historical record.
(25:46):
But the real magic happens inthe administrative process,
when each agency goes throughits long process of soliciting
feedback and creatingthe regulation.
That stuff is still going on.
(26:07):
I don't know.
The signs pointto it continuing.
FRED RASCOE (26:11):
So one other thing that I
wanted to ask whileI've got you on
is I know that you've writtena couple of white papers
about the federal purposelicense and federal open access,
and you said that there'smore coming in the series.
What are the other aspects thatyou're going to write about?
(26:35):
What needs to bea focus for people
that are interested in knowingthe legal reasons behind why
this is a valid policy forthese federal agencies?
ERIC HARBESON (26:50):
So the first two papers
pretty much encompassthe legal basis
from the federalgovernment side.
The policy of usingthe federal purpose
license for the public accesspolicies is the first paper.
(27:11):
The policies themselves are thesubject of the second paper.
The next paper is goingto be a little bit more
focused on the institutionsand the faculty authors,
usually academicfaculty authors,
(27:31):
and looking at institutionalintellectual property policies.
There's thisquestion in copyright
and academic authorship of whoactually is the owner of faculty
(27:55):
authored research.
Is it the facultymember herself or is it
the institution under thework-for-hire doctrine?
And it turns out that canimpact the effectiveness
(28:15):
of this first priority licensethat the federal purpose
license is.
If the institution issigning the grant agreement
and the institution doesn'thave rights to give,
then it can't give those rights.
If the institution doeshave the rights to give,
then they can give those rights.
So there's work that needsto be done in sorting out
(28:37):
how institutions havethe rights to give
to the federal government inorder to activate that license.
And then the fourth paperwill be looking the ontology
of academic research.
There are all of thesedifferent stages of publication
(28:59):
of a peer-reviewed article.
There are the articles, theversion submitted for review.
There's the version thatcomes after the peer review,
but before the publisherhas typeset it.
There's the version thatis the version of record.
And looking at how the federalpurpose license applies
(29:24):
to each of those stages ofauthorship and scholarship,
and which versions satisfy theneed for the taxpayer access
to taxpayer-funded research.
FRED RASCOE (29:40):
After those papers come out,
I think it would be greatto have you back on.
ERIC HARBESON (29:45):
I would enjoy that.
FRED RASCOE (29:46):
Well, maybe we'll have a different idea of what's
going on in thecurrent administration
and what the research fundingoutlook and support looks like.
ERIC HARBESON (29:56):
There is that.
FRED RASCOE (29:59):
Eric, Thank you so much for joining us and being
on our show today.
ERIC HARBESON (30:04):
Thank you.
It was a pleasure.
MARLEE GIVENS (30:07):
This is Lost in the Stacks.
And our guest todaywas Eric Harbeson.
He's a librarian, a lawyer,and the scholarly publishing
legal fellow forAuthors Alliance.
CHARLIE BENNETT (30:17):
You can file this next set under Code
of Federal Regulations,Title II, Section 200.315(b).
[MUSIC PLAYING]
MARLEE GIVENS (30:41):
That was "Same Mother Of Pearl," by Sharkboy.
CHARLIE BENNETT (30:45):
I'm putting that record on
as soon as I getback to the office.
MARLEE GIVENS (30:48):
All right.
And before that, "TheAuthor in Her Ear,"
by the Strapping Fieldhands.
Songs about authorship,process, and feedback.
[MUSIC PLAYING]
FRED RASCOE (31:06):
Today's show was called the Legality
of Open Access Mandates.
My conversation with EricHarbeson of Authors Alliance
continued on for abit longer than we
could fit into oneepisode, and so I
want to play one more little bitfrom the end of our conversation
that we didn't have time toinclude in the main interview.
I wanted to includethis specifically
(31:27):
because it reallysums up why mandating
open access to researchmakes so much sense.
[MUSIC PLAYING]
ERIC HARBESON (31:37):
From the author's perspective,
there's no benefit to havingyour stuff behind a paywall.
Academic authors,the exclusive rights
don't help them because theyare not looking for royalties.
(31:58):
They benefit frompeople citing to them,
people reading their stuff.
The coin of therealm in the academy
is the impact of yourresearch and publication.
Fewer people read your stuffif it's behind a paywall.
FRED RASCOE (32:15):
No one publishes specifically
to publish with, well, aspecific publishing company.
I was going to say I was goingto name one or two, but I won't.
Yeah.
ERIC HARBESON (32:28):
I think I heard you anyway.
[LAUGHS]
[MUSIC PLAYING]
CHARLIE BENNETT (32:41):
Fred, I think I heard the names also.
So why don't youroll the credits?
But let's be careful, shall we?
[MUSIC PLAYING](SINGING) Look out!
Lost in the Stacksis a collaboration
between WREK Atlanta andthe Georgia Tech Library,
written and produced by AlexMcGee, Charlie Bennett, Fred
(33:02):
Rascoe and Marlee Givens.
FRED RASCOE (33:04):
Legal counsel and an electric toothbrush,
which I need.
I was told todaythat I needed that,
so thanks, Philip, provided bythe Burrus Intellectual Property
Law Group in Atlanta, Georgia.
CHARLIE BENNETT (33:14):
Philip is branching out, huh?
MARLEE GIVENS (33:16):
Yep.
A special thanksto Eric for being
on the show, to open accessoptimists everywhere,
and thanks, as always, toeach and every one of you
for listening.
CHARLIE BENNETT (33:26):
Our web page is library.gatech.e
du/lostinthestacks, where you'llfind our most recent episode,
a link to our podcastfeed, and a web form
if you want to getin touch with us.
MARLEE GIVENS (33:38):
Next week, we'll hear about how
to train your algorithm.
It's only a little easierthan training a dragon.
FRED RASCOE (33:45):
It's time for our last song today.
Federal open accesspolicy mandates may
be on solid legalfooting, but who
knows what futurefederal government
policies may have in store?
CHARLIE BENNETT (33:57):
No one here.
FRED RASCOE (33:58):
Hopefully, successful open access work
won't be undone byfuture executive action.
So let's close with "GovernmentPolicy," by The Expelled,
right here on Lostin the Stacks.
CHARLIE BENNETT (34:11):
I'm sensing some irony to this last song.
[MUSIC PLAYING]
(SINGING) And theanswer to this cry,
the promise of a better life.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.