Consolidated Appropriations Act Provides for Public Access to Federal Research

By Donald Zuhn --

Last month, President Obama signed the Consolidated Appropriations Act, 2014, which makes consolidated appropriations for the fiscal year ending September 30, 2014.  One provision of the 639-page Act, which can be found in Division B (concerning appropriations for Commerce, Justice, Science, and Related Agencies), specifies that certain Federal agencies must develop a Federal research public access policy.  In particular, the section states:

SEC. 527.  Each Federal agency, or in the case of an agency with multiple bureaus, each bureau (or operating division) funded under this Act that has research and development expenditures in excess of $100,000,000 per year shall develop a Federal research public access policy that provides for --
    (1) the submission to the agency, agency bureau, or designated entity acting on behalf of the agency, a machine-readable version of the author’s final peer-reviewed manuscripts that have been accepted for publication in peer-reviewed journals describing research supported, in whole or in part, from funding by the Federal Government;
    (2) free online public access to such final peer-reviewed manuscripts or published versions not later than 12 months after the official date of publication; and
    (3) compliance with all relevant copyright laws.

The above provision is similar to legislation that was introduced in both the House and Senate last year (see "Legislation Introduced to Develop Public Access Policies for Federal Research").  That legislation, entitled the Fair Access to Science and Technology Research Act of 2013 ("FASTR"), would have required Federal agencies with research expenditures of more than $100,000,000 to develop a public access policy providing for the submission of manuscripts accepted for publication in peer-reviewed journals that result from research that has been supported by Federal funding, which in turn would have been made available online to the public no later than six months after publication.  Unlike § 527 of the Consolidated Appropriations Act, FASTR would have excluded, inter alia, "research resulting in works that generate revenue or royalties for authors (such as books) or patentable discoveries, to the extent necessary to protect a copyright or patent" (emphasis added).

Comments

[Skeptical]

The mandated access is merely to publication, right?

This is not the same as access to any use, or prevention from use, that may be related to the patent right, yes?

In other words, the virtual effect of this legislation is more along the lines of filing an application before publishing - which given the razor thin protection afforded under the new 102, is what is prudent anyway.

I am not seeing a real issue here.

[Kevin E. Noonan]

Except as another trap for the unwary. After all, the new provisions of Section 102 were debated, championed, hurrahed and otherwise heralded so widely that no one could be unaware of them or their implications.

As opposed to one section comprising 130 words in a 639-page Appropriations Bill.

How much debate do you think there was about this provision? It suggests that the bill drafters put in one of their pet goals and desires hoping/knowing that no one would pay enough attention to make a difference.

Not representative democracy at its finest. Need to be careful when this starts to happen.

[Skeptical]

I agree Dr. Noonan that many bills passed into law are simply not vetted appropriately.

I would daresay that even those that do receive debate, champions, hurrahs, and otherwise heralding STILL are not vetted appropriately.

I am, well, skeptical, as to how much 'representative democracy' is underway at the specific bill to law process - as opposed to the 'representative democracy' of mere voting someone into office. These are two distinct notions in my mind and are worlds apart in practice.