On June 26, U.S. Representative Martin Olav Sabo (D-MN) introduced a bill that would amend U.S. copyright law to preclude copyright protection for scientific papers based on research “substantially funded” by the U.S. government.

In a speech before the House introducing the Public Access to Science Act (PASA) of 2003, Sabo stated, “[c]ommon sense dictates we provide the most cutting-edge research to all who may benefit from it, especially when they have already paid for it with their tax dollars.”

Sabo’s bill underscores an ongoing public policy issue relating to intellectual property protection: how best to weigh the interest of the public in open and free access to beneficial information, and the interest of providing incentives to develop and compile that information by offering some degree of protection in return for such efforts.

The traditional model for scientific journal publishers is to recoup the costs associated with peer review, editing, and publishing through subscription fees and advertising. Publishers require authors to transfer copyright as a condition of publication.
Although journals would still be able to publish articles without copyright protection, they would not be able to control the distribution or republishing of the articles.

Supporters of the bill contend that publishers’ contributions to scientific papers are minimal in comparison to the contributions of scientists and the general public through tax dollars. The U.S. federal government spends about $45 billion a year on scientific and medical research, and Sabo noted that, “[i]t defies logic to collectively pay for our medical research, only to privatize its profitability and availability.”

What about business?

But publishing is a business, and publishers need to recoup their operating costs don’t they?

One proposal to address the question of where the money for publishing will come from if the bill is passed is to include such costs in the research grants themselves. One private research funder, the Howard Hughes Institute, has already indicated a willingness to wrap publication costs into their grants.

Without such a measure, Sabo’s bill may have the unintended consequence of making federally funded research less available because there will be fewer publishers who can afford to provide a free public service.

At present, Sabo’s bill has been referred to the House Judiciary Committee and no further action has been scheduled. This will be one to watch, given the wide reaching implications for scientific publishing and access to research findings.

Ed Ergenzinger, J.D., Ph.D., is an Associate in the Biotechnology Patent Group of Alston & Bird, LLP. Murray Spruill, J.D., Ph.D., is a Partner at Alston & Bird, LLP where he serves as Biotechnology Patent Group Chair. They can be reached at eergenzinger@alston.com and mspruill@alston.com, respectively.