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Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy?

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Cardozo Arts and Entertainment Law Journal

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Should works resulting from research that has been substantially subsidized by the United States federal government be protected by copyright, or immediately enter the public domain? The Public Access to Science Act (PASA) would place these works in the public domain in the same manner as works prepared by government employees. This paper evaluates the merits of the legislation by placing the question of the appropriate copyright treatment of federally subsidized works within a historical perspective, taking into account the underlying purposes of copyright policy as well as the changes that have taken place in the field of scholarly publishing since Congress last considered the issue in 1976. The regulatory environment and practices of the major federal funding agencies are reviewed, showing that agencies have failed to utilize their broad discretion over the treatment of funded works, resulting in over-protection of works as the default rule.

This paper considers how the balancing of interests that has historically informed copyright policy should be applied to works that have been federally supported; it will review and assess the initial reactions to PASA from the point of view of various stakeholders, including commercial publishers, non-commercial publishers, universities, authors and researchers, and library associations; and it will consider whether PASA's purposes might be accomplished through other mechanisms.

This paper reaches the conclusion that works resulting from extramural research that has been substantially subsidized by the federal government should enter the public domain in the same manner as works resulting from intramural government research undertaken by federal employees, and that PASA provides a straightforward mechanism for reaching this result.

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