George Mason University Antonin Scalia Law School

New CPIP Policy Brief: Open-Access Mandates and the Seductively False Promise of “Free”

the word "copyright" typed on a typewriterCPIP has published a new policy brief entitled Open-Access Mandates and the Seductively False Promise of “Free.” The brief, written by CPIP Legal Fellow Bhamati Viswanathan and CPIP Director of Academic Programs & Senior Scholar Adam Mossoff, exposes the lack of evidence or justification for the proliferating legal mandates by federal agencies that coerce authors and publishers to make their scholarly articles available for free to the world.

The Introduction to the policy brief is copied below:


Federal agencies are increasingly mandating or proposing free public access for copyrighted works that report on federally-funded research. These “open-access mandates” compel scholars and researchers to make their articles or other writings freely available to billions of people around the world. Furthermore, many of the mandates also allow the public to modify these copyrighted works without the authors’ consent. Countless authors and publishers must comply with this legal mandate of “free.” Federal agencies—such as the Department of Education, the National Institutes of Health, and the Department of Energy—disburse billions annually in research grants. As a result, open-access mandates encompass millions of published articles, test-related materials (including those relating to standardized tests and testing services), and even computer software source code.

Open-access mandates have the potential to significantly harm the publishing industry. In 2015, the American publishing sector generated $27.78 billion in net revenue, representing 2.71 billion published works in electronic and print formats. This includes over 500,000 works in higher education, as well as learning materials for primary and secondary education. Works of scholarship, such as scientific research, also account for a significant share of revenue-generating materials. Unfortunately, open-access mandates are a direct threat to the business model that enables the multi-billion dollar market in scholarly and educational publishing to thrive.

Open-access mandates require publishers to place their works in government-operated repositories that are openly accessible and free of charge to users. But publishers typically invest hundreds of millions of dollars in building and supporting their own innovative and sophisticated systems for delivering copyrighted works to the public. Open-access mandates frustrate these efforts, effectively undermining publishers’ proven business models. Further, they force publishers to compete with government-run systems that need not be efficient, advanced, or profitable. By inserting the government as a competitor to private actors in the publishing sector, open-access mandates undermine publishers’ incentives to invest in both copyrighted works and effective systems for disseminating those works.

Open-access mandates also strike at the heart of copyright law by depriving publishers of their right to own and commercialize their copyrighted works as they see fit. U.S. copyright law secures to copyright owners fundamental property rights in their works; these rights cannot be eviscerated by administrative fiat. By forcing publishers to forfeit their rights to commercialize their copyrighted works, open-access mandates in works that report on federally-funded research are incompatible with fundamental principles of copyright law.

The publishing industry is built upon a business model that is proven, realistic, and robust. Moreover, the industry is constantly investing in innovation and improvement of its products and services. Proponents of open-access mandates seek to replace this model with an untested set of systemic changes. Yet they have not offered any evidence that the open-access model is viable and sustainable. Barring such evidence, open-access mandates should not be adopted.

Open-access mandates should be rejected as a prime example of regulatory overreach. In this paper, we address four reasons why this is the case:

  • Open-access mandates undercut publishers’ ability to invest in producing and distributing copyrighted works.
  • Open-access mandates contradict basic principles of copyright law.
  • Open-access mandates are the classic example of a solution in search of a problem: there is no evidence of a systemic market failure in scholarly publishing requiring a massive regulatory intervention.
  • Open-access mandates are based on untenable economic models.

We begin, however, by noting that while open-access mandates raise serious legal, policy, and economic concerns, the open-access model itself is unobjectionable when done on a voluntary basis.

To read the policy brief, please click here.