Even as federal agencies work to implement the Nelson memo—a 2022 White House directive to make federally funded research freely available to the public immediately after publication—members of Congress are joining academic publishers in pushing back.

Under the directive, slated to go into effect by 2026, authors who use grant funding to produce research will be required to deposit their work into agency-designated public-access repositories as soon as it’s published. That change eliminates the existing option for authors or their publishers to place a 12-month embargo on public access to government-funded research publications, a rule that’s been in place 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 is to promote “equity and advance the work of restoring the public’s trust in Government science, and to advance American scientific leadership.”

Although open-access advocates and library groups support the move, opponents argue the new policy will limit researchers’ ability to maintain control of their published work—and cut into the $19 billion academic publishing industry’s profit margins.

“Researchers should have the right to choose how and where they publish or communicate their research and should not be forced to disseminate their research in ways or under licenses that could harm its integrity or lead to its modification without their express consent,” the Senate and House Appropriations Committees both wrote in reports attached to their draft budget bills, which passed out of 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 that the organization applauds Congress’s latest efforts to scrutinize the Nelson memo and “protect the right of authors to determine how the articles, books, and reports they have written are licensed.”

Federal Purpose License

As tensions over open-access expansion mount in Washington, a growing number of academic library groups across the nation has expressed concern about the challenges of helping authors learn to comply with the new deposit policy, which many may encounter for the first time after the Nelson memo takes effect.

“In a worst-case scenario, authors who do not understand their grant requirements and the legal landscape may face negative enforcement actions from funders, disputes about copyrights or contracts, or roadblocks to publishing,” reads a recently drafted petition signed by dozens of individual librarians and library groups, including the Authors Alliance and SPARC, the Scholarly Publishing and Academic Resources Coalition.

The petition encourages 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 federal purpose license advocates believe it will “provide grant recipients with a clear understanding of their obligations as authors [and] facilitate better compliance with funder requirements,” the House Appropriations Committee’s recently advanced bill prohibits agencies from exerting “broad” federal purpose authority.

Not a ‘Viable’ Path

Publishers don’t like the idea, either.

Maxwell, a registered lobbyist for the AAP, said that while “broad open licenses may make sense for some researchers,” others “may be rightfully concerned about inappropriate modification, or commercialization of their publication, and those authors should have the final say in who can modify and commercialize their work.”

Although the copyright-focused argument is dominating the political opposition to the Nelson memo this year, last year the House Appropriations Committee tried—but failed—to block funding to implement it. Public comments submitted by the AAP and numerous other publishing groups, including the American Society of Civil Engineers, Springer Nature and Wiley, show the embargo lift is also creating financial anxieties.

“There is no viable way for scholarly societies and other publishers to continue to produce trustworthy, high-quality open access publications without any means to recoup the significant investments and expenses required for them to do so,” Maxwell wrote in a letter submitted on behalf of the AAP to the National Institute of Standards and Technology last August. “We are concerned about potential long-term effects of the new policy on the scholarly communication ecosystem.”

Currently, the academic publishing industry’s business model relies largely on an author’s willingness to submit work for free—or even pay to publish it—and the publisher’s ability to turn around and 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 supports expanding open access of federally funded research and the federal purpose license.

“We don’t have any concerns about agencies limiting authors’ control over their works,” said Katherine Klosek, ARL’s director of information policy and federal relations. “These are nonexclusive licenses that authors are granting to agencies to use their work, so authors can retain those rights and choose to publish wherever they like in addition to complying with public access policies.”

Despite its purported concerns about copyright infringement, the publishing industry hasn’t always prioritized the rights of individual authors; last month the academic publishing giant Taylor & Francis angered many scholars by neglecting to mention 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 supports authors in disseminating their work, said authors already lack control because most closed-access subscription journals require them either to assign their copyright to the publisher or to grant the publisher exclusive rights.

“The idea that the federal government is exercising its right—before publishers swoop in—to reserve for itself this nonexclusive license is troubling to publishers that might worry that would limit their ability to exploit their exclusive rights for subscription revenue or other kinds of licensing deals,” he said. “But that’s not really a copyright conflict—that’s just a business model conflict.”

To address that conflict, publishers will first have to decide if they want to continue publishing research funded by the federal government, which finances nearly 55 percent of academic research and development, according to the National Science Board. “[For] most publishers, the answer would be absolutely not, because they’d have nothing to publish,” Hansen added.

He believes implementing the Nelson memo will also push publishers to make big decisions about how the industry should move forward in an age of open-access expansion.

“Do they adapt their business models and try to align more closely with what authors and funders want?” he said. “Or do they try to stick out the model they’ve developed, which is one that’s dependent on them trying to scoop up as much exclusive rights as they can for authors’ articles?”