Legal Pathways to Open Access is a joint project of Authors Alliance and SPARC to study critical issues in access to scholarly research. Among the goals of the year-long project are a series of white papers addressing Federal public access policy, updating the SPARC Author Addendum, and studying and making recommendations on institutional intellectual property policies. This page will host the white papers, supporting documents, and other resources generated by and related to the project.
SPARC and Authors Alliance gratefully acknowledge the support of Arcadia, which enabled this work.
Practical Guidance on Federal Public Access Policy Implementation
As federal agencies such as the NIH implement their public access policies, we are working to collect information from researchers/authors, librarians, administrators and others to understand and address challenges they face.
- Read our FAQ here, which was developed to help authors in the context of the acceleration of the implementation of the NIH public access policy to become effective July 1, 2025.
- Fill out our survey here to share your experiences with the rollout of Federal public access policies across funding agencies. This form is meant to collect experiences of authors/researchers, librarians, administrators and others so that we can develop new resources and tools on these issues.
White papers
I. Open Access and U.S. Federal Information Policy.
This paper is a study of the Federal Purpose License (FPL) within the larger context of Federal public access mandates and especially the White House Office of Science and Technology Policy memo of August 25, 2022 (the “Nelson Memo”). The paper provides general background on copyright and open access, and then analyzes the language, regulatory history, and purpose of the FPL. Suggested citation: Eric Harbeson, Authors Alliance and SPARC, Open Access and U.S. Federal Information Policy, Legal Pathways to Open Access white paper no. 1 (2024). https://dx.doi.org/10.2139/ssrn.5020096
The paper: PDF (SSRN) • PDF (SocArXiv) • HTML | One-page summary
Appendix A: Text of 2 C.F.R. § 200.315 (see also the version of record) | Appendix B: Agency implementations of 2 C.F.R. § 200.315(b)
II. The Legal Basis For U.S. Federal Public Access Mandates
The second white paper in the series examines the legal landscape surrounding the Federal Purpose License and Federal public access policies. The paper asks, “are Federal public access policies legal?” Answer: yes. The policies and the FPL are valid delegations of Congress’s constitutionally-vested powers. The paper considers—and rejects—possible objections arising from the Constitution’s Spending Clause, Free Speech Clause, and Takings Clause, as well as objections based in the sometimes ambiguous power of Federal agencies (including a discussion of the recently overturned Chevron doctrine).
The paper: PDF (SSRN) • PDF (SocArXiv)
III. Federal Grants and Institutional IP Policies
The third white paper addresses a thorny and long-debated question in copyright: who is the author of academic scholarly works? Without taking a position, the paper shows how the question is still very much unsettled, and as a result institutions would do well to craft policies that account for any of three possible outcomes should courts one day rule definitively. The paper makes three simple recommendations for institutions looking to deal with a very complex problem.
The paper: PDF (SSRN) • PDF (SocArXiV)
Future white papers
At least one more white paper is planned. It will be posted here when it is released. Watch our blog for announcements!
Supporting documents
Documents gathered during research of the white papers, assembled here for the convenience of readers and anyone doing similar research. Documents are offered as is, with no warranty.
- Copyright Act of 1909—35 Stat. 1075 (1909)
- Administrative Procedure Act—Pub. L. 79-404 (1946)
- Reorganization Plan no. 2—84 Stat. 2085 (1970)
- Executive Order no. 11541—35 Fed. Reg. 10737 (1970)
- Executive Order no. 11717—38 Fed. Reg. 12315 (1973)
- FMC 73-7—39 Fed. Reg. 797 (1973)
- Office of Federal Procurement Policy Act (Repealed)—Pub. L. 93-401 (1974)
- Circular no. A-110—41 F.R. 32016 (1976)
- Copyright Act of 1976—Pub. L. 94-553 (1976)
- House Report 94-1476 (1976)
- Federal Grant and Cooperative Agreement Act—Pub. L. 95-224 (1978)
- Money and Finance Enactment—Pub. L. 97-258 (1982)
- Executive Order no. 12549—51 Fed. Reg. 12549 (1986)
- Berne Convention Implementation Act—Pub. L. 100-568 (1988)
- Chief Financial Officers Act—Pub. L. 101-576 (1990)
- GSA Implementation of Circular A-110—59 Fed. Reg. 47268 (1994)
- Copyright Term Extension Act—Pub. L. 105-298 (1998)
- Circular no. A-110, rev. 1999—64 Fed. Reg. 54926 (1999)
- Federal Financial Assistance Management Improvement Act—Pub. L. 106-107 (1999)
External resources
Federal Purpose License fact sheet (HELIOS)