Open Access Mandates and the Seductively False Promise of Free

Authors: Bhamati Viswanathan & Adam Mossoff

Abstract: CPIP 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.

Citation: Viswanathan, Bhamati & Mossoff, Adam. Open Access Mandates and the Seductively False Promise of Free. Center for the Protection of Intellectual Property. April 2017.


6 thoughts on “Open Access Mandates and the Seductively False Promise of Free

  1. Sherry Lake says:

    I would like to offer a few inaccuracies from this paper. I’ll be back with more later. The following were sent out to the SPARC members last week (re-posting with permission from Heather Joseph, Executive Director, SPARC):

    The paper fundamentally misrepresents the policies it purports to analyze. The authors characterize current U.S. policies (including the NIH Public Access policy and policies developed under the OSTP Directive) as “Open Access” policies that require not only free access to, but also full reuse of articles. As you are aware, none of the policies currently in place require full reuse – which is why they are referred to as “Public Access” policies.

    The paper describes non-existent policies. Specifically, the authors describe in detail a Department of Energy “Open Licensing Requirement for Direct Grant Programs,” requiring recipients of DOE grants to “Openly License new copyrightable materials created in whole or in part” from department funds. However, the Department of Energy does not have any such requirement. It appears the authors are mistakenly describing a requirement from another agency – the Department of Education.

    The authors compound this error by mischaracterizing what the Department of Education’s Open Licensing Requirement actually covers. That requirement only applies to educational materials resulting from Department of Education’s grant programs, and carries a specific exemption for research papers.

    • Stacy Konkiel says:

      Hi Graham,

      Thanks very much for your thoughts!

      Could you add a bit more context to your claims that the piece is “filled with errors and FUD”? For example, what is it exactly about their analysis that is incorrect or misleading?

      Having the facts spelled out can help other Idealis readers understand exactly why this piece is so problematic.

      co-founder, The Idealis

      • steelgraham says:

        I was just about to !

        (Just to clarify my earlier comment. FUD = the creation of Fear, Uncertainty and Doubt)

        I don’t have time to go through the article in detail. For starters though, I do challenge these assertions:-

        • Open-access mandates undercut publishers’ ability to
        invest in producing and distributing copyrighted works.

        (No shit Sherlock). A high percentage of such materials is funded by taxpayers who should not have to pay to access it.

        •Open-access mandates contradict basic principles of
        copyright law.

        (no evidence provided in the article)

        • 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.

        (no evidence provided in the article)

        • Open-access mandates are based on untenable economic

        (no evidence provided in the article)

        In terms of OA Mandates, according to ROARMAP, there are currently 865 in place

        For more background about OA Mandates, see the likes of They have been found to be and are highly effective.

    • Stacy Konkiel says:

      Hi Cal,

      Thanks for commenting! I agree that CPIP’s supporters page offers some excellent context to the report’s claims.

      It’d be helpful to Idealis readers if you were able to offer more details about why you find the paper “unremarkable”. We welcome any and all forms of fact-based feedback on Idealis content.

      Having this feedback spelled out, as a form of open peer review, can help other readers understand why exactly it is so problematic.

      co-founder, The Idealis

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