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Researcher Posts Protected Mars Papers to Protest Journal Paywalls

A prominent critic of scientific journals that charge subscriptions to read government-funded research results has launched a high-profile protest by posting five copyrighted Science papers on his personal website.

“I am taking a stand [on] the accessibility of research carried out by the government,” geneticist Michael Eisen of the University of California, Berkeley, tells ScienceInsider. “But I’m not interested in breaking the law.”

Eisen posted the papers without asking permission of the copyright holders, an apparent violation of U.S. law. But it would be up to the authors of the papers, not the journal, to take any legal action against Eisen, copyright lawyers say.

Yesterday, Eisen caused a stir in social media by downloading and then reposting the papers, which appear in today’s issue of Science and describe discoveries about martian geochemistry by NASA’s Curiosity rover. Eisen says he was “astonished” to discover that the papers were behind Science’s paywall, and that NASA should have pushed to make them freely available because many of the authors were government employees. “The research was funded with $2.5 billion of tax money,” Eisen says. “It's more than just a missed opportunity for NASA. It should be a scandal.”

Eisen is no stranger to the fight for making scientific research accessible. He helped launch the open-access publishing movement by co-founding the Public Library of Science (PLOS), which publishes several free journals. Open-access journals give free access to readers and pay their bills by charging scientists a publication fee, while traditional journals charge subscribers or libraries.

Eisen and other open-access advocates have also pushed governments to require immediate free access to taxpayer-funded findings, with mixed results. In the United States, for instance, federal science agencies have moved to require researchers and journals to make government-funded papers freely available within a year of publication, although many agencies are still working out the details.

Ginger Pinholster, director of the Office of Public Programs for AAAS (the publisher of ScienceInsider), wrote in a statement (see below) that the Curiosity papers were published subject to Science’s usual conditions. They include giving authors or their nonprofit employers several ways to freely share versions of the papers. And the journal gives authors the copyright, and asks “only for a License to Publish.”

In essence, that means it is up to the authors, who hold copyright, to decide whether they want to take any action against Eisen. ScienceInsider was unable to reach any of the authors for comment. It is also unclear what penalties Eisen might face if the authors successfully challenged his posting of the papers.

Eisen, however, suggests that the Curiosity papers shouldn’t be given copyright protection. Legal experts say that work produced totally by government employees cannot be copyrighted; it is the public’s property. “If all the authors of a paper are NASA employees, then he’s probably right that the work would be public domain,” says David Schulz, a lawyer with Levine Sullivan Koch & Schulz, LLP in Washington, D.C. (who also advises ScienceInsider on legal issues).

Papers produced by mixed teams of public and private employees, however, exist in a legal gray area, because the co-authors can own copyright to their work. But Eisen says: “The law should not be subverted just because a non-government author is added to a paper.”

Science’s statement:

“Science does not request copyright of authors. We ask only for a License to Publish, and we use a particularly generous model that permits authors to share copies with colleagues, post the Accepted Version to their Web sites, use for communication purposes, and more.

We also allow the author's nonprofit employers to post the Accepted Version, and we provide a free "referrer link" that lets visitors to the author's Web site freely access the paper on the Science site. Whether or not the research team used that benefit in this case, we don't yet know, but the opportunity exists. (We have today reached out to the research team to encourage the use of the referrer link.)

AAAS, as a nonprofit publisher, supports the NIH public access policy, and so we make all content freely available on our site after 12 months, or immediately in the case of papers with significant public health implications, or if required by the author's funding agency.

In this case, a number of the authors of the Curiosity papers were not U.S. government employees, but rather, worked at institutions such as JPL [NASA’s Jet Propulsion Laboratory] and CalTech. The research articles therefore were subject to our License to Publish and were treated in the usual fashion.”