“Science must re-evaluate its open-data policy after retracting a controversial study on microplastics and fish in May (“Editorial Retraction,” J. Berg, 26 May, p. 812 and “Fishy business,” M. Enserink, News Feature, 24 March, p. 1254). The only computer containing the study’s raw data was allegedly stolen and no backups existed on another machine or an online repository. Many are left wondering how this could happen in an era of cloud computing and open data….Publishing verifiable research is a tenet of scientific progress and, ultimately, journals are responsible for guaranteeing compliance with their open-data policy. At a minimum, this responsibility involves a cursory check of the underlying data and ensuring that all data are available for reviewers to assess. Science publishes many papers describing major breakthroughs, but these extraordinary claims must be supported by extraordinary evidence. This includes, first and foremost, a complete and understandable data set that is open to reviewers and, ultimately, becomes open to scientists and the public….”
“Background: The Gordon and Betty Moore Foundation (GBMF) was interested in understanding the potential effects of a policy requiring open access to peer-reviewed publications resulting from the research the foundation funds. Methods: We collected data on more than 2000 publications in over 500 journals that were generated by GBMF grantees since 2001. We then examined the journal policies to establish how two possible open access policies might have affected grantee publishing habits. Results: We found that 99.3% of the articles published by grantees would have complied with a policy that requires open access within 12 months of publication. We also estimated the maximum annual costs to GBMF for covering fees associated with “gold open access” to be between $400,000 and $2,600,000 annually. Discussion: Based in part on this study, GBMF has implemented a new open access policy that requires grantees make peer-reviewed publications fully available within 12 months.”
“To assist HRA [Health Research Alliance] member organizations wishing to adopt a public access policy, the HRA Public Access Task Group partnered with the National Library of Medicine (NLM) to enable HRA member-funded awardees/grantees* to deposit their publications into PubMed Central (PMC)….The following is a template developed by the HRA Public Access Task Group in conjunction with the Scholarly Publishing and Academic Resources Coalition (SPARC) that can be used by organizations seeking to implement public access policies as a condition of award funding. This template is based on the policy developed by HRA member organization, Autism Speaks. …”
“The Health Research Alliance, a collaborative member organization of nonprofit research funders, is committed to maximizing the impact of biomedical research to improve human health….The HRA partnered with the National Library of Medicine (NLM) to enable HRA member-funded awardees to deposit their publications into PubMed Central (PMC) with an embargo no longer than 12 months….”
Denmark’s top-ranked higher education institution is to shift away from patenting research conducted in partnership with the private sector to pursue an open science model.
Aarhus University’s new initiative, called Open Science, does not allow either the university or the companies involved to patent any discoveries made during the research process and, at the end, the results are disclosed to everyone – even other firms – in what it calls a “patent-free playground”.
“Research Councils UK invites proposals from eligible UK research organizations to establish and lead a number of challenge-led and impact-focused GCRF Interdisciplinary Research Hubs which meet the aims of Official Development Assistance….Organizations that wish to be research partners (for example higher education organizations, public laboratories, or other non-profit research intensive organizations) must demonstrate compliance with the following criteria: …Public good and open publications – Organizations will need to demonstrate a track record of maximizing the wider impact and value of its research to the benefit of society and local economy and should have a commitment to the principle of open access publication….”
Abstract: Open access proponents argue that scholars are far more likely to make their articles freely available online if they are required to do so by their university or funding institution. Therefore, if the open access movement is to achieve anything close to its goal of seeing all scholarly articles freely available online, mandates will likely play a significant role. In 2008, the Harvard University Faculty of Arts and Sciences adopted a policy that purports not only to require scholars to deposit their works in open access repositories, but also to grant the university nonexclusive copyright licenses to archive and publicly distribute all faculty-produced scholarly articles. A number of other American universities have since adopted similar policies. The principal aim of this Article is to analyze the legal effect of these Harvard-style open access “permission” mandates.
By invoking copyright law terminology in permission mandates, schools might intend that they have the legal effect of transferring nonexclusive rights to the school, thereby clarifying and fortifying the school’s rights to reproduce and publicly disseminate faculty works. However, the legal effect of these mandates is uncertain for several reasons. First, it is unsettled whether scholars or their university employers are the authors and initial owners of scholarly articles under U.S. copyright law’s work-made-for-hire rules, which vest authorship and copyright ownership in the employer for works created by employees within the scope of employment. Second, the mandates are broad university policies that purport to grant the university nonexclusive copyright licenses in every scholarly article unless a faculty member affirmatively opts out on a per-article basis. Are the policies specific enough to provide the essential terms of the grant? Furthermore, can the mere adoption of a school policy, without some additional affirmative act by the author, effectuate such a grant without unduly encroaching upon the author’s autonomy interests? Lastly, even if the policies effectuate nonexclusive license grants, will the licenses survive after the author transfers copyright ownership to a journal publisher as per common practice? Section 205(e) of the Copyright Act provides that a prior nonexclusive license evidenced in a writing signed by the right holder prevails over a subsequent conflicting transfer of copyright ownership, so the answer appears to turn on whether permission mandates satisfy the requirements of § 205(e).
This Article argues that permission mandates can create legally enforceable, durable nonexclusive licenses. First, it argues that although there are important justifications, including academic freedom concerns, for recognizing the controversial “teacher exception” to the work for hire rules for scholarly articles, such an exception may be unnecessary because a strong argument also exists that much scholarship is produced outside the scope of employment for work for hire purposes. Second, it argues that permission mandates provide sufficient evidence of the grantor’s intent and the rights granted to create effective nonexclusive licenses. Third, permission mandates satisfy the requirements of § 205(e) and establish the license’s priority over the subsequent transfer of copyright ownership largely because they fulfill the underlying purposes of § 205(e) by providing sufficient evidence and notice of the license to potential copyright transferees (typically academic publishers). In reaching these conclusions, this Article emphasizes that Courts should consider the uniformity costs (social costs resulting from applying uniform rules and granting uniform entitlements across diverse conditions) that arise from applying to scholarly articles copyright rules developed to address proprietary models of information production. Applying the relevant copyright rules in a manner sensitive to the nonmarket nature of scholarly production is the most effective way to reduce these social costs, and reinforces the conclusion that mandate licenses are enforceable.
Lastly, the Article considers whether the opt-out nature of permission mandates offends notions of authorial autonomy in copyright. It compares permission mandates with another high profile opt-out licensing regime: the proposed Google Books settlement agreement, which the court rejected partly because of authorial autonomy concerns. Authorial autonomy is far less of a concern for scholarly articles than for the books at issue in the Google Books case, however, due to the nonmarket nature of scholarly article production coupled with academic community norms. Accordingly, it does not substantially interfere with authors’ autonomy interests to find that the opt-out structure of permission mandates creates valid nonexclusive licenses in universities.
“A similar model, introduced successfully at Harvard University in 2008 and adopted by many US institutions (such as MIT), inspired the UK-SCL. Under the UK-SCL each member of staff grants the university a non-exclusive, irrevocable, worldwide licence to make the accepted final version of their scholarly articles publicly available under the terms of a Creative Commons Attribution Non-Commercial (CC BY NC) licence. Under this licence, non-commercial reuse is permitted, as long as the author is credited. The university can sublicense these rights to all authors of the paper and their host institutions. The university will make metadata available publicly upon deposit and the manuscript within 12 months of acceptance or immediately upon publication, whichever is earlier. On request the university will usually (but does not have to) grant a waiver to these rights for up to 2 years from publication. [The exact embargo length and length of waiver are still under discussion] Imperial College London is leading the implementation of the UK-SCL. Discussions involve over 70 organisations in the UK including several Russell Group institutions. There has also been extensive consultation with the Russell Group Policy office, HEFCE, Jisc, the Wellcome Trust and a number of international organisation….”
“The National Institutes of Health (NIH) is issuing this policy to promote broad and responsible dissemination of information from NIH-funded clinical trials through ClinicalTrials.gov. The policy establishes the expectation that all investigators conducting clinical trials funded in whole or in part by the NIH will ensure that these trials are registered at ClinicalTrials.gov, and that results information of these trials is submitted to ClinicalTrials.gov. The policy is complementary to the statutory and regulatory reporting requirements. …”