Lawmakers Raise New Licensing Concerns Over White House Open Access Mandate

Members of the appropriations committees in Congress are again taking aim at the White House’s plan to make federally funded research freely available upon publication, this time through a new, narrower angle that has broader support.

While Republican appropriators in the House have previously tried to entirely block the White House’s open access policy, now appropriators in both chambers of Congress have advanced legislation that would block federal agencies from limiting authors’ ability to choose how to license their work.

As agency leaders contemplate how they will implement the White House’s policy, which takes effect in 2026, a proposal to publish all federally funded research under one type of license, known as a federal purpose license, has started to gain traction.

Advocates of this approach, including some agencies, open access advocates, and library groups, say that it will provide clarity for authors and help avoid legal disputes with publishers over article republishing and other reuse rights.

Opponents of the proposal, including some major academic publishers, say it would infringe on authors’ rights to choose how their work is published and what others may do with it. Appropriators are now echoing that concern.

“Researchers should have the right to choose how and where they publish or communicate their research and should not be forced to disseminate their research in ways or under licenses that could harm its integrity or lead to its modification without their express consent,” the Senate and House Appropriations Committees wrote in separate reports accompanying draft appropriations legislation for the upcoming fiscal year. The reports, published this summer, add that federal agencies “may be violating this principle” in their implementation plans, and direct the White House to make sure agencies do not “limit grant recipients’ ability to copyright, freely license, or control their works.”

This language used in the House report and Senate report regarding researcher choice is identical, though the House goes further by advising federal agencies not to “exert broad ‘federal purpose’ authority over peer reviewed articles” or “otherwise force use of an open license.”

House Republicans also propose that the White House be prohibited from using any funding to implement the policy, as they attempted in last year’s legislation. That prohibition is not in the version of the bill advanced by the Senate, which is controlled by Democrats. But the fact Senate appropriators echoed much of their House counterparts’ language about licensing suggests there is bipartisan support for preventing agencies from limiting authors’ control over their work.

In their implementation plans for the White House policy, several agencies have contemplated using their existing federal purpose authority to control the republication and reuse of articles. The authority gives agencies a “royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for federal purposes” or “authorize others to do so.”

Though the White House policy does not expressly instruct agencies on how to address licensing and copyright issues, it does advise them to consider “the circumstances or prerequisites needed to make the publications freely and publicly available by default, including any use and re-use rights, and which restrictions, including attribution, may apply.”

Many librarians argue that universal use of the federal purpose license is the best way forward for authors. The University of California published a statement in support of this approach back in April, and several major academic library consortia have backed the proposal.

The federal purpose license would remove ambiguity for authors over when they may deposit their works in federal repositories, the UC statement said. It notes for instance that while “a few institutions have successfully negotiated with publishers to secure the right for authors to deposit their work with no embargo” such efforts “generally face tremendous resistance from publishers.” The statement also points out that the federal purpose license has been used by the Department of Energy for years to meet the requirements of previous public access mandates.

The National Science Foundation’s implementation plan for the White House policy, published in February 2023, suggests there “needs to be federal-wide consensus” that agencies can use their federal purpose authority to make work funded by federal awards freely available. “Lacking that ability, changes would need to be made to the Uniform Guidance to ensure that agencies have legal authority, as well as to minimize the risk of legal actions from award recipients and publishers,” NSF adds, referring to regulatory guidance from the White House Office of Management and Budget that governs grant management.

Notably, House appropriators explicitly oppose NSF’s proposed course of action. In the appropriations bill report, they direct NSF to “refrain from issuing guidance, restrictions, or otherwise limiting the ability of extramural grant recipients to freely license or control their written works, including under [the Uniform Guidance] or guidance on ‘federal purpose’ from the Office of Management and Budget.”

This stance appears to align with the position of several major scholarly publishing groups. A collection of industry and non-profit perspectives on the subject are included in an appendix to the public access plan of the National Institute of Standards and Technology, which solicited comments on a draft version of the plan. For example, the Association of American Publishers wrote that NIST should “center and empower researchers by allowing them to choose the license which best meets their needs.”

“Broad open licenses may make sense for some researchers, while others may be concerned about inappropriate modification, misinterpretation, or commercialization of their publication,” association stated. “Researchers need the ability to choose the best license for their publication, including non-commercial, non-derivative versions and we note that an open license is not necessary to draw upon the ideas presented in a scholarly communication.”

This view is in stark opposition to the recommendations of SPARC, an open access advocacy group, which advocated that NIST ensure publications “carry full reuse rights, such as those provided by a CC BY 4.0 International License or its functional equivalent.”

SPARC suggested there are two ways to achieve this – either relying on the existing federal purpose license or requiring grantees receive “an analogous additional license that specifically provides the right to grant the public re-use rights to agency publications” SPARC further asked NIST to alter the language in its public access plan to ensure that publishers’ claims to a publication cannot override the agency’s authority to make the article public.

Disclosure: FYI is a publication of the American Institute of Physics, a non-profit federation of scientific societies. AIP is partially supported by revenue generated from AIP Publishing, a wholly owned but independently operated subsidiary that produces scientific journals.