NIST Knows It’s a “Taking”
The draft NIST public access policy appears to carefully consider copyright, the 5th Amendment, and other legal complexities
The National Institutes of Standards and Technology (NIST) appears to have better staff lawyers than some other Federal agencies.
When the government seeks to seize private property, it is required to provide reasonable compensation to the private parties affected. This is instantiated in the 5th Amendment of the US Constitution, and was extended to include the states in the 14th Amendment. As a result, the NSF’s plan to take not only privately reviewed and edited manuscripts but PIDs without compensation seems on the face of it blatantly unconstitutional.
NIST just posted its public access plan for public commentary. In it we find a great deal of hemming and hawing about what can be considered legal paths to obtaining final, peer-reviewed manuscripts. For example, as government employees, NIST staff can’t copyright their works, nor can the publishers publishing them, so these are fair game.
In addition to flagging the complexity of foreign authors I’ve touched on before, the relevant section starts on line 114: