As federal agencies work to implement the Nelson Memo—a 2022 White House directive that calls for federally funded research to be made freely available to the public immediately after publication—scientific publishers and members of Congress are resisting.
Under the directive, which is due to come into force by 2026, authors who use grants for their research must deposit their work in publicly accessible archives designated by the authority immediately after publication. This change removes the existing possibility for authors or their publishers to block public access to government-funded research publications for 12 months – a rule that has been in force since 2013.
Alondra Nelson, the former acting director of the Office of Science and Technology Policy, wrote in the 2022 memo that bears her name that the goal of lifting the embargo was to “promote equity and advance the work of restoring public trust in government science and strengthening America’s scientific leadership.”
Although open access advocates and library groups support the move, opponents argue that the new policy will limit researchers’ ability to maintain control over their published work – and will reduce profit margins in the $19 billion academic publishing industry.
“Researchers should have the right to choose how and where to publish or communicate their research, and they should not be forced to disseminate their research in ways or under licenses that could damage their integrity or result in changes without their explicit consent,” both the Senate and House Appropriations Committees wrote in reports attached to their budget proposals that passed the committee earlier this summer.
Carl Maxwell, vice president of public policy for the Association of American Publishers (AAP), said in an email to Inside Higher Ed The organization welcomes recent efforts by Congress to review the Nelson memo and “protect the right of authors to determine under which license the articles, books and reports they write are licensed.”
Federal purpose license
As tensions mount in Washington over the expansion of open access, a growing number of academic library groups across the country have expressed concern about how difficult it will be to help authors comply with the new deposit policies – a situation that many may have encountered for the first time since the Nelson Memorandum took effect.
“In the worst cases, authors who do not understand the eligibility criteria and legal framework for their grants may face coercive action by funders, disputes over copyright or contracts, or obstacles to publication,” says a recent petition signed by dozens of individual librarians and library groups, including the Authors Alliance and SPARC (Scholarly Publishing and Academic Resources Coalition).
The petition calls on federal agencies to “level the playing field for authors” by applying the Federal Purpose License, a decades-old regulation that gives federal agencies that funded the publication of research “the royalty-free, nonexclusive, and irrevocable right” to reproduce, publish, or otherwise use the work.
Although proponents of a federal purpose license believe it will “provide grantees with a clear understanding of their responsibilities as creators (and) facilitate better compliance with funders’ requirements,” the House Budget Committee’s recent bill prohibits agencies from exercising “broad” authority with respect to federal purposes.
No “viable” path
The publishers don’t like the idea either.
Maxwell, a registered lobbyist for the AAP, said that “broad, open licenses might make sense for some researchers,” but that others “are rightly concerned about inappropriate modifications or commercialization of their publications, and that those authors should have the final say on who can modify and commercialize their work.”
Although the copyright argument dominates political opposition to the Nelson Memorandum this year, the House Appropriations Committee tried last year — unsuccessfully — to block funding for its implementation. Public comments from the AAP and numerous other publishing groups, including the American Society of Civil Engineers, Springer Nature, and Wiley, show that lifting the embargo also raises financial fears.
“There is no viable way for scholarly societies and other publishers to continue producing trusted, high-quality open access publications without the ability to recoup the significant investment and expenditure required to do so,” Maxwell wrote last August in a letter he sent to the National Institute of Standards and Technology on behalf of the AAP. “We are concerned about the potential long-term impact of the new policy on the scholarly communication ecosystem.”
Currently, the business model of academic publishing relies largely on authors’ willingness to submit their work for free – or even pay to publish it – and on publishers’ ability to sell that research to academic libraries through expensive journal subscriptions. Libraries at doctoral-granting institutions spend about 80 percent of their materials budgets on such subscriptions, according to data from the Association of Research Libraries (ARL), which advocates for expanding open access for federally funded research and the Federal Purpose License.
“We have no concerns about agencies limiting authors’ control over their works,” said Katherine Klosek, ARL director of information policy and federal relations. “These are non-exclusive licenses that authors grant to agencies to use their works, allowing authors to retain those rights and be free to choose where to publish while complying with public access policies.”
Despite ostensible concerns about copyright infringement, the publishing industry has not always made the rights of individual authors a top priority. Last month, academic publisher Taylor & Francis angered many scientists by failing to mention that it was selling their work to Microsoft for $10 million as part of an AI partnership.
Dave Hansen, executive director of the Authors Alliance, a California-based nonprofit that helps authors distribute their work, said authors lack control because most paid, closed-access journals require them to either assign their copyrights to the publisher or give the publisher exclusive rights.
“The idea of the federal government exercising its right to reserve this non-exclusive license before publishers step in is concerning to publishers, who fear that it will limit their ability to leverage their exclusive rights for subscription revenue or other types of licensing agreements,” he said. “But that’s not really a copyright conflict — that’s just a business model conflict.”
To resolve this conflict, publishers must first decide whether they want to continue publishing research funded by the government, which funds nearly 55 percent of academic research and development, according to the National Science Board. “For most publishers, the answer would be a clear no, because they would have nothing to publish,” Hansen added.
He believes that the implementation of the Nelson Memorandum will also force publishers to make important decisions about how the industry should evolve in the era of expanding open access.
“Are they adapting their business models and trying to be more aligned with the wishes of authors and funders?” he asked. “Or are they trying to maintain the model they have developed, which is based on trying to get as many exclusive rights as possible for authors’ articles?”
