Access Government Funded Research Free Online—The Next Battle?

The SOPA protest victory may be the energy behind coordinated legislative strikes in the six year old effort to make large amounts of government funded research available to all online. The Federal Research Public Access Act of 2012 (FRPAA) was simultaneously introduced in the U.S. House and Senate. This version of the bill is essentially the same as the first version introduced in 2006. It has enemies in the publishing industry.

In sleepy December before Wikipedia went dark and Google’s skewed black logo redaction, a bill favored by publishers called the Research Works Act (RWA) was more quietly introduced. A previous counterattack bill against FRPAA was supported by publishers and introduced in 2009.

FRPAA would make all outside work for federal agencies with research budgets of at least $100M available to the public online. RWA would stop all of it, regardless of budget, from being online without permission, and prevent federal agencies from building permission into their contracts with authors. FRPAA-like legislation is also being introduced at the state level, such as the “Taxpayer Access to Publicly Funded Research Act” (TAPFR) in New York. Presumably countermeasures are being introduced there to boot.

The Copyright Act denies protection “for any work of the United States Government, but the United States Government is not precluded from receiving, and holding copyrights transferred to it.” 17 USC §105. If even a work made for hire can’t be owned by the government, its ability to receive copyrights surely allows it to make all such works available to the public if it chooses.

Publishers of works prepared for the government by people who are not government employees are publishing them for a plain reason—to sell copies. To do that they need author contracts that do not convey copyrights to the government. They also need either no new legislation, or adoption of RWA. The forces of open access may have the momentum today, but what are the legal arguments and fairness issues involved?

An interesting place to provoke analysis is a dispute that began in 1997 when a “Regional Web” published online as a public service the local building codes of Anna and Savoy, Texas. The towns adopted the “Standard Building Code” written by the Southern Building Code Congress International, Inc., a non-profit. It owned the copyright in the code which was copied verbatim in the website, and sued for copyright infringement.

Building codes are complex technical documents produced at the cost of considerable expense and effort. The non-profit wanted to recover some of that investment by selling copies to contractors, architects, engineers, owners, and anyone else interested in constructing or renovating a building. The website operator wanted to make it possible for anyone to access the code online, but this was 1997 and that was a much smaller audience.

Years of litigation resulted in an en banc decision in favor of the website operator. Veeck v. Southern Building Code Congress International, 293 F.3d 791 (5th Cir. 2002). The question decided by the court was “the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become ‘the law.'” The court made two major findings.

First, law is made by the public and everyone is entitled to access to it–all of it. “[W]e hold that when Veeck copied only ‘the law’ of Anna and Savoy, Texas, which he obtained from SBCCI’s publication, and when he reprinted only ‘the law’ of those municipalities, he did not infringe SBCCI’s copyrights in its model building codes.”

Second, under the teaching of Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991), the “building codes of Anna and Savoy, Texas can be expressed in only one way; they are facts.” On the face of it, the non-profit still possessed a copyright which covered its sales of the Standard Building Code. Yet the code had become a group of facts instead of a creative work once it was adopted by a unit of government.

Is research by the private sector funded by the government like “the law” if it is “adopted” by a federal agency, but not if it isn’t? Since government works aren’t protected by copyright, does government funding alone make the research a fact? Political momentum may make such questions irrelevant, but if the opposing forces in this battle care to talk to each other, maybe they are worth considering.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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