Law Asked by agemO on August 29, 2021
Maybe it belongs to the academia forum, but I have never understood why public funded researchers can transfer their paper ownership to private publishers. We, the taxpayers, fully pay for the researchers salaries, laboratories material, infrastructure etc. so why can they just give all of their results to someone else? Why do we have to pay again for something we have already paid for?
Despite having myself worked in public research, I genuinely can’t tell what is the difference between allowing this, or allowing a bakery to tell their clients "Remember this cake you already pay for? We gave it to someone else, but I’m sure he will be willing to sell it back to you!".
Similarly, a private company would never let its R&D employees decide on their own whether to publish something in a scientific journal.
To simplify, maybe this question can be restricted to US or whatever European country for which someone has an answer.
EDIT: I’m also specifically asking about scientific publications, not patents. Maybe I can restrict it even further with two specific cases:
In situation 2, You can spend your working time (paid by CNRS):
Of course you can’t do that in situation 1. Yet, from what I remember from the contracts, there was not much difference between 1 and 2 (besides maybe patents).
(Another united-states answer)
There really is no legal difference between the two cases you mention. The general principle in both cases is the same: an employee can spend her work time writing papers, and publishing them in paywalled journals, if and only if this is allowed by her employer and any applicable contracts. Beyond that, it's really a business decision on the part of each employer whether this is something that they want their employees to do.
It may well be that many universities and research institutes choose to say yes, and many private companies choose to say no, but there are exceptions, and neither choice is either forbidden or required by law.
As user6726 points out, the basis for this is the principle of work for hire: that if an employee produces a copyrightable work in the course of their job, the copyright by default belongs to the employer. But the employer can, if they so choose, turn around and give the copyright back to the employee. Many universities have internal policies that make this automatic (example); but again, the law doesn't require this. Conversely, a private employer would be free to have such a policy if they wanted. And once the copyright belongs to the employee, she is free to transfer it to a paywalled journal if she wants, or to anyone else whom she wishes.
You write:
Of course you can't do that [publish in paywalled journals, etc] in situation 1 [if you work for a private company].
Sure you can, if the company agrees you can. As an example with which I happen to be familiar, here is a recent research paper published in a paywalled commercial journal, one of whose authors (Yuval Peres) is an employee of a private company (Microsoft Research). The article's title page says the copyright belongs to the publisher (Springer-Verlag GmbH), so Microsoft must have agreed to transfer it. Now perhaps they had some sort of internal process to approve this, and to verify that the paper didn't contain any proprietary information, but that's entirely up to Microsoft.
Research grants add a wrinkle. They are usually structured as a contract between the funding agency and the researcher's employer. This contract would normally include a provision saying what should happen to the copyrights of any works created in the course of the funded research. As one example, most US government funding for research in the physical sciences comes through the National Science Foundation, and they have the following policy:
732.2 The following copyrightable material clause will be used in every funding agreement awarded by NSF that relates to scientific or engineering research unless a special copyrightable material clause has been negotiated. [...]
(b) Except as otherwise specified in the grant or by this paragraph, the grantee may own or permit others to own copyright in all subject writings. The grantee agrees that if it or anyone else does own copyright in a subject writing, the Federal government will have a non-exclusive, nontransferable, irrevocable, royalty-free license to exercise or have exercised for or on behalf of the U.S. throughout the world all the exclusive rights provided by copyright. Such license, however, will not include the right to sell copies or photorecords of the copyrighted works to the public.
This says, in short, that the US government doesn't want the copyright and the grantee (i.e. the researcher's employer) can keep it. (The government does retain a license which permits them to use the work but not to sell it.) If the employer has an internal policy like I described above, they may transfer it on to the researcher herself, who may in turn transfer it to a commercial publisher or whoever else. But again, if the NSF were to change their policy, they could start insisting, for newly awarded grants, that all copyrights must be turned over to the government, or released into the public domain, or they could place other restrictions on what could be done with the work. This might, of course, discourage some researchers from applying for NSF grants (though probably not).
(It's worth noting that, as of a couple years ago, NSF does now have a policy, which is included as another term in their grant contracts, that a copy of any such paper must be given to NSF to be posted on a public website, after a 12-month embargo period. But the grantee still retains the copyright. This is presumably meant as a compromise to provide public access without destroying the existing academic publication system.)
Correct answer by Nate Eldredge on August 29, 2021
For the same reason that any other endeavor subsidized by the government can generally keep its profits.
Farmers' subsidies don't entitle the government to the farmers' profits. Car manufacturer subsidies don't entitle the government to the car manufacturers' profits. And so on.
The government subsidizes certain endeavors under the assumption that they contribute to the public good. The government does not ask for a partial ownership as a precondition for receiving the funds. So the government does not have it.
Since you claim to be familiar with academia, you may know that, in exchange for receiving grants, the government will often ask for considerations other than equity in the discoveries. The government can (and I believe usually does) request a detailed written account of the research performed.
This isn't limited to the government. Private entities may just as well subsidize endeavors without formally receiving any stake in those endeavors. Donations to hospitals, for example, are common.
Answered by grovkin on August 29, 2021
This is a US-law answer. The Constitution protects various rights of individuals, and in general, there is no abrogation of your rights if you receive a benefit from government. Your presumption that taxpayers fully fund researchers and materials is incorrect, in the US, although there are some researchers whose salaries are entirely paid by taxes. So as a matter of basic law, a person is entitled to intellectual property that they create, regardless of how they interact with the taxing structure.
US law has a concept of "work for hire", whereby if I am hired by Podunk U to write a book, the book may be the property of Podunk U and not me the author. Usually, publicly supported institutions have policies that reign in the tendency of universities to lay claim to the research output of their faculty (but not staff) in terms of copyright, but not patents. In principle, a publicly supported university could hold that faculty are hired to write books and therefore any book that they write is a work for hire. This is not done for mostly political reasons.
There are various employer-mandated obligations on university employees to make works "open access", but it would take an act of Congress to make this a uniform legal requirement for, e.g., "anyone working for a company who in some manner receives funding from the federal government". There is no such law in the US. Incidentally, this liberty extends to other domains, such as food, because all food is in some way touched by federal money.
The explanation for why the law is what it is is entirely political, that in the US, the concept of private property is recognized and protected by law, and there is no law allowing the arbitrary taking of private property. The law can be changed (it may take some constitutional amendments). You could follow this up on Politics SE to ask, what would be the most-acceptable abrogation of property rights in the US which had the effect that "if you receive direct or indirect tax support, you lose your property rights" (probably too broad for SE, but that's the underlying political issue).
If you want a model of what such a law might look like, you can start with the US law regarding patents and federal assistance. There are many specifics which would have to be re-written to get the situation where a person benefitting from government funding must turn over their copyright to government. First you would have to pin down what it means to benefit from taxpayer support. The usual way this is done is in terms of being a party to a funding contract between a government agency and an employer. This has no direct effect on authors (who 99.99% of the time do not contract with the government), so the law would also have to require parties to government funding contracts to impose contractual restrictions on any individuals vaguely receiving a benefit from such funding, so that those who benefit from a funding contract must assign copyright to the government. The set of people who benefit indirectly from grants is vastly larger than the set of people who receive dollar amounts from grants, so the law needs to be specific (do students who learn from teachers supported by a grant therefore themselves benefit from tax dollars).
This is a major infringement on the property rights of individuals, so such a law would be challenged in court and subject to strict scrutiny. It is unlikely that the case can be made that turning over copyright to the government is a compelling government interest; however the interest is stated, it would have to be the least restrictive and most narrowly tailored means of accomplishing that end.
Answered by user6726 on August 29, 2021
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