The “Taking” Issue Heats Up

A top court finds that the deposition requirement for copyrighted works represents an unconstitutional "taking"

A US Court of Appeals ruling released yesterday is adding heat to an issue that could undermine the OSTP’s public access policies.

In June, I wrote about the possibility that the NSF public access policy may prove unconstitutional since the 5th Amendment of the US Constitution includes a guarantee that the government cannot seize private property without making a due compensation. These protections were extended to the states with the 14th Amendment.

Two bullet points of the proposed National Science Foundation policy appear to fly in the face of these Constitutional protections:

That all peer-reviewed scholarly publications resulting from NSF-funded research will be made freely available and publicly accessible by default in the NSF Public Access Repository, or NSF-PAR, without embargo or delay.
That persistent identifiers, or PIDs, and other critical metadata associated with peer-reviewed publications and data resulting from NSF-funded research will be collected and made publicly available in NSF-PAR.     

Approximately a month later, NIST posted its public access plan for public commentary, where we find much equivocation about what can be considered legal paths to obtaining final, peer-reviewed manuscripts. They flag the complexity of foreign authors, and write (bolding mine):

NIST’s plan further requires that the final manuscript, which has been peer-reviewed and accepted for publication (i.e., the author’s accepted version), be freely available to the public through PMC immediately upon publication if law allows and no later than 12 months following publication if publisher policies permit. Immediate availability is dependent upon (1) whether a manuscript is published in an open access journal or through paid open access, (2) whether the content of the manuscript is not subject to copyright, (3) and whether any co-author(s) can claim copyright and has transferred that copyright to a manuscript’s publisher. NIST will study 2 CFR §200.315 Intangible Property and FAR 52.227 Rights in Data to determine conditions under which awardees can deposit author manuscripts in institutional repositories. Terms and conditions will be modified as appropriate, and guidance on rights retention for NIST-funded authors will be developed.

I wrote about how NIST lawyers seemed to sense they were on thin ice.

The cited regulation regarding intangible property (2 CFR §200.315 Intangible Property) comports with the rights protected by the 5th and 14th Amendments. In fact, this regulation seems to undercut the idea that author manuscripts — beyond a very narrowly defined set (i.e., those authored entirely by US government employees) — can be claimed by the US government, as the government disclaims ownership of intangible outputs beyond data generated as part of US government grants, and explicitly allows copyrighting of “any work that is subject to copyright and was developed, or for which ownership was acquired, under a Federal award.”

A court ruling decided yesterday stoked these issues, as the US Court of Appeals in the District of Columbia ruled that the use of Section 407 of the Copyright Act to require publishers to deposit copies of books with the Library of Congress represents an “unconstitutional taking” of the plaintiff’s property — in this case, Valancourt Books, LLC, an independent small press based in Richmond, VA, specializing in new editions of neglected classics.