Innovation in the Public Sphere: Reimagining Law and Economics to Solve the National Institutes of Health Publishing Controversy

Oxford Journal of Law and the Biosciences, Vol 1(3), pp. 281-315 doi:10.1093/jlb/lsu025

35 Pages Posted: 1 Apr 2015

See all articles by Charlotte Tschider

Charlotte Tschider

Loyola University Chicago School of Law

Date Written: October 6, 2014

Abstract

The National Institutes of Health (NIH) are responsible for the largest proportion of biological science funding in the United States. To protect the public interest in access to publicly funded scientific research, the NIH amended terms and conditions in funding agreements after 2009, requiring funded Principal Investigators to deposit published copies of research in PubMed, an Open Access repository. Principal Investigators have partially complied with this depository requirement, and the NIH have signaled an intent to enforce grant agreement terms and conditions by stopping funding deposits and engaging in legal action. The global economic value of accessible knowledge offers a unique opportunity for courts to evaluate the impact of enforcing ‘openness’ contract terms and conditions within domestic and international economies for public and economic benefit. Through judicial enforcement of Open Access terms and conditions, the United States can increase economic efficiency for university libraries, academic participants, and public consumers, while accelerating global innovation, improving financial returns on science funding investments, and advancing more efficient scientific publishing models.

Keywords: open access, efficiency, law and economics, grant agreement, public contract, National Institutes of Health, NIH, scientific research, service contract, Tucker Act, oligopoly, scientific publishing, copyright, antitrust

JEL Classification: A12, D4, D43, D61, D63, D78, K00, K12, K21, L13

Suggested Citation

Tschider, Charlotte, Innovation in the Public Sphere: Reimagining Law and Economics to Solve the National Institutes of Health Publishing Controversy (October 6, 2014). Oxford Journal of Law and the Biosciences, Vol 1(3), pp. 281-315 doi:10.1093/jlb/lsu025, Available at SSRN: https://ssrn.com/abstract=2587291

Charlotte Tschider (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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