Public Access to Science: The New Policy of the National Institute of Health in Light of Copyright Protections in National and International Law

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Science is built upon the shoulders of giants. Hence, advancement in this field relies on knowledge exchange and open scientific communication. This has led to the development of a publishing model whereby scientists submit their communications to publishers for publication in journals. Commercial scientific journals have become the main communication channel for science. Today, lofty and increasing journal subscription costs are becoming prohibitive and leading to serious obstructions in accessing scientific literature.

In an effort to recalibrate the system, and motivated by the desire to grant the public access to publicly funded medical and scientific research, the United States has recently established a new policy regarding scientific research funding. Since 2008, publications resulting from research funded by the National Institutes of Health (NIH) must be made freely available no later than one year following publication.

In this article, the NIH Public Access Policy (Policy) will be evaluated with a particular focus on the domestic goals of intellectual property and the international mechanism designed to allow states to pursue these goals, namely, the Three-Step Test. These particular provisions of the Policy and the peculiar case of research in the biomedical sciences lead to a finding that the Policy is compatible with the broader policy environment in which it resides—both at the national and international level.

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