Public Domain and Paywalled: Journal Articles Authored or Co-authored by U.S. Government Employees
DOI:
https://doi.org/10.17161/jcel.v7i2.19857Abstract
Academic journal articles authored by U.S. government employees are assumed to be in the public domain, though journals vary in communicating this status, and access is often not provided. To document this situation, between September 2020 and March 2021 we collected and analyzed copyright statements from a random sample of articles in PDF published in 2019 by authors affiliated with two U.S. government agencies. 13% of the sampled articles had a copyright statement indicating the U.S. public domain or U.S. government authorship. 42% of the published versions of the sampled articles were behind a paywall. Even when all authors of an article were U.S. government employees, 29% were labeled in the U.S. public domain, and 66% were behind a paywall.
While copyright notices are not required, notice provides legal certainty on the usage of journal articles, which are shared among scholars, added to bibliographic managers, and posted to websites and repositories. Journal articles authored by U.S. government employees may be a source of open access that has not been fully realized, and uniquely, a retrospective source of access for scholarship. We suggest best practices for journal publishers, as well as possible actions by U.S. government agencies, library organizations, and institutional repositories. The U.S. public domain provides an opportunity to increase the number of peer-reviewed journal articles that are open access.
Metrics
References
References
Association of Research Libraries. (2015). Issue brief: U.S. copyright status of U.S. federal government works. https://www.arl.org/wp-content/uploads/2015/06/copyright-status-of-government-works.pdf, archived at https://perma.cc/JQL4-ZXVG.
CENDI. (2017, December). Frequently asked questions about copyright: Issues affecting the U.S. Government. CENDI/2008-1. https://cendi.gov/pdf/FAQ_Copyright_30jan18.pdf, archived at https://perma.cc/D9XW-HQQ6.
Committee on Publication Ethics. (n.d.). Authorship and contributorship. Retrieved August 5, 2022, from https://publicationethics.org/authorship, archived at https://perma.cc/9693-CTF9.
Committee on Publication Ethics (COPE), DOAJ, the Open Access Scholarly Publishing Association (OASPA), and the World Association of Medical Editors (WAME). (2022, September 15). Principles of transparency and best practice in scholarly publishing, version 4. DOAJ. https://doaj.org/apply/transparency/, archived at https://perma.cc/85MH-9K8Z.
Council of Science Editors. (n.d.). 2.2 Authorship and authorship responsibilities. Retrieved March 3, 2023, from https://www.councilscienceeditors.org/2-2-authorship-and-authorship-responsibilities, archived at https://perma.cc/2JKT-69H7.
Elsevier. (2022, February 3). NERL and Elsevier continue agreement and develop open access pilot. https://www.elsevier.com/about/press-releases/corporate/nerl-and-elsevier-continue-agreement-and-develop-open-access-pilot, archived at https://perma.cc/2KP3-9FMJ.
Hathcock, A. (2016, March 20). Creative Commons requires consent. At The Intersection: Blog about the Intersection of Libraries, Law, Feminism, and Diversity. https://aprilhathcock.wordpress.com/2016/03/20/creative-commons-requires-consent/, archived at https://perma.cc/439S-RNVM.
Heald, P. (1994). Payment demands for spurious copyrights: Four causes of action. Journal of Intellectual Property Law, 1(2), 259–292. https://digitalcommons.law.uga.edu/fac_artchop/344
Hinchliffe, L. J., & Nowlan, K. (2022, November 14). A failure to communicate: Indicators of open access in the user interface. The Scholarly Kitchen. https://scholarlykitchen.sspnet.org/2022/11/14/indicators-of-open-access-in-the-user-interface, archived at https://perma.cc/4HY7-APFJ.
International Committee of Medical Journal Editors. (n.d.). Defining the role of authors and contributors. Retrieved August 5, 2022, from https://www.icmje.org/recommendations/browse/roles-and-responsibilities/defining-the-role-of-authors-and-contributors.html, archived at https://perma.cc/QER8-Q8Z2.
Klein, B. (2009). Copyright alert! Even U.S. government information may be protected by copyright. Searcher, 17(4). https://www.infotoday.com/searcher/apr09/Klein.shtml, archived at https://perma.cc/KR24-WAY7.
Mazzone, J. (2011). Copyfraud and other abuses of intellectual property law. Stanford Law Books.
National Information Standards Organization. (n.d.). CRediT. Retrieved August 5, 2022, from https://credit.niso.org/, archived at https://perma.cc/WC6Y-9Y6D.
New York Public Library. (2019, September 1). Historical copyright records and transparency. https://www.nypl.org/blog/2019/09/01/historical-copyright-records-transparency, archived at https://perma.cc/4SDC-HWFT.
Priora, G. (2019). Copyright law and the promotion of scientific networks: Some reflections on the rules on co-authorship in the EU. Queen Mary Journal of Intellectual Property, 9(2), 217–232. https://doi.org/10.4337/qmjip.2019.02.05
RightsStatements.org. (n.d.). No Copyright - United States. Retrieved March 16, 2023, from https://rightsstatements.org/page/NoC-US/1.0/, archived at https://perma.cc/JT9M-Y7BA.
Ringer, B., & Flacks, L. I. (1980). Applicability of the Universal Copyright Convention to certain works in the public domain in their country of origin. Bulletin of the Copyright Society of the U.S.A., 27(3), 157-204. https://heinonline.org/HOL/P?h=hein.journals/jocoso27&i=171
Royster, P. (2014). Foxes propose new guidelines for henhouse design: Comments on NISO’s proposed open access metadata standards. Journal of Librarianship and Scholarly Communication, 2(3). https://doi.org/10.7710/2162-3309.1170
Rozencwaig-Feldman, T. (2021). The author and the other: Reexamining the doctrine of joint authorship in copyright law. Fordham Intellectual Property, Media & Entertainment Law Journal, 32(1), 172–224. https://ir.lawnet.fordham.edu/iplj/vol32/iss1/3
Seymore, S. B. (2006). How does my work become our work? Dilution of authorship in scientific papers, and the need for the academy to obey copyright law. Richmond Journal of Law & Technology, 12(3), 1–28. http://scholarship.richmond.edu/jolt/vol12/iss3/4
Teixeira da Silva, J. A., & Al-Khatib, A. (2021). Copyright transfer in group-authored scientific publications. Insights, 34 (7), 1-14. https://doi.org/10.1629/uksg.535
Teixeira da Silva, J. A., & Dobránszki, J. (2016). How authorship is defined by multiple publishing organizations and STM publishers. Accountability in Research, 23(2), 97–122. https://doi.org/10.1080/08989621.2015.1047927
Tresansky, J. O. (1981). Copyright in government employee authored works. Catholic University Law Review, 30(4), 605–620. https://scholarship.law.edu/lawreview/vol30/iss4/4
U.S.C. Title 17 §105 - COPYRIGHTS. (n.d.). Retrieved August 5, 2022, from https://www.govinfo.gov/content/pkg/USCODE-2020-title17/html/USCODE-2020-title17-chap1-sec105.htm, archived at https://perma.cc/3FCT-BPQJ.
U.S. Forest Service. (n.d.). Treesearch. Retrieved August 19, 2022, from https://www.fs.usda.gov/treesearch/, archived at https://perma.cc/SPA4-6GV2.
Wiley. (n.d.). Copyright Transfer Agreement: Example of CTA. Retrieved July 22, 2022 from https://authorservices.wiley.com/asset/Copyright-Transfer-Agreement-Sample.pdf, archived at https://perma.cc/7BSU-R4TA.
World Association of Medical Editors. (2007). Authorship. Retrieved August 5, 2022, from https://wame.org/authorship, archived at https://perma.cc/TD2C-RHHH.
Downloads
Published
Issue
Section
License
Copyright (c) 2024 Philip Young, Jimmy Ghaphery
This work is licensed under a Creative Commons Attribution 4.0 International License.
