The American people have invested heavily in developing the nation’s intellectual capital. They have done so primarily through research performed or sponsored and funded by federal agencies. The public’s right to access this information, however, has been gradually diminished through the proprietary capture of information developed through federal research.

The New Enclosure (Part II)

The notion that the things we create belong to us is not new; it dates back at least to 560, when Ireland’s King Diarrmait ruled against the monk Colmcille, who had secretly copied his mentor Finnian’s psalter.  (Legend records Diarmait’s judgment as “To every cow belongs her calf, therefore to every book belongs its copy.”)

But that is not how President Andrew Jackson’s appointee to the U.S. Supreme Court Justice John McLean applied the principle in his majority opinion in Wheaton v. Peters (1834).  Scholars can debate whether ownership of one’s own original works is in fact a natural or common law right, as King Diarmait supposed, or whether it is a privilege granted by the sovereign.[i] But Justice McLean could find in the United States no common law right to the exclusive use of one’s creations.

At issue was whether Henry Wheaton enjoyed a common law copyright in the annotated  reports, with opinions, of the Supreme Court that he had prepared and published, a copyright that Richard Peters had violated when he published cheaper, abridged editions of  Wheaton’s reports.

Two lower courts had held, as McLean would affirm, that:

“It is clear there can be no common law of the United States. The federal    government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the Constitution or laws of the union.”[ii]

Only the Congress, by virtue of section eight of the first article of the Constitution, has the power “to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.”  “Congress,” wrote McLean, “by the act of 1790, instead of sanctioning an existing perpetual right in an author in his works, created the right, secured for a limited time, by the provisions of that law.”[iii]

And then, at the end of his majority opinion, McLean added:

“It may be proper to remark that the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.”

Thus it was that the U.S. Supreme Court established, almost as an afterthought, that the information generated by those in whom the “People of the United States” have vested their  legislative, executive, and judicial powers, belongs to the people of the United States, and that any proprietary right in that information can be granted only by the Congress, as provided in Article I, Section 8.

In the modern world intellectual capital is the purest coin of any realm.  No less than the metallic coin of economics, its greatest social benefits accrue from widespread accumulation and circulation.  Before World War II the largest accumulation of intellectual capital owned by the federal government took the form of census data, information gathered by regulatory agencies, and scientific and technical information collected by the departments of Agriculture, Interior, the US navy, army, and coast guard.  Of comparable value for the continuation of democracy was the growing body of  interrelated reports prepared by the legislative, judicial, and executive branches of government and their administrative agencies.

World War II and the Cold War resulted in the unprecedented expansion of publicly directed and funded research. Federal investments in research and development (R&D) increased at over twice the rate of the total federal budget between 1940 and 1980.  This research produced new ideas and knowledge—information necessary for effective understanding and action—of inestimable value.

Most of those federal dollars—which grew from $186 million in 1940 to over $72 billion in 2000—flowed as contracts and grants  through the procurement offices of the departments of defense and energy, the National Institutes of Health, and the National Aeronautics and Space Administration.   Those dollars then began to substantially support the budgets of an expanding aerospace and healthcare industry, as well as research universities. The accumulated skills of these private sector institutions at obtaining federal grants and contracts, and their lobbying to sustain the federal research and development programs that produced them, ensured that they would receive the lion’s share of the public’s R&D investment for decades to come.

At the start of the 21st century three fourths or more of the R&D budgets at each of the principal federal research and development agencies[iv] went to a relatively small group of corporations that included such familiar heavy-hitters as Lockheed-Martin, Boeing (which absorbed McDonnell Douglas in 1997), Raytheon, Bechtel, TRW, and Science Applications International.  Beneficiaries among academic institutions included the universities of California, Michigan and Washington, Columbia, Stanford, and the Johns Hopkins University.

Before the 1980s, once a sponsoring agency obtained information from a recipient of one of its research grants or contracts,  members of the public could, in turn, request that information under the federal Freedom of Information Act or FOIA (subject to the usual privacy or national security exemptions).  Most agencies, however, settled for research reports, accepting their contractors’ or grantees’ claims that data must be withheld from the public in order to protect the identity of human research subjects, sequester data prior to its publication in peer-reviewed research journals, or to protect the data’s potential proprietary value.

Waiving delivery of research data as a matter of policy received the imprimatur of the U.S. Supreme Court in 1980, when it ruled (in Forsham v. Harris) that if a federal agency did not actually create or obtain research data itself, such data could not be considered federal records and subject to the FOIA.  Forsham was a boon to academic research institutions that had wandered from their ideological moorings of disinterested science into the sporty waters of high-technology business, a process well-captured in Daniel S. Greenberg’s Science for Sale: The Perils, Rewards, and Delusions of Campus Capitalism (2007).

Then, critics of the national air quality standards released by the Environmental Protection Agency in 1997 during the Clinton administration, led by Senator Richard Shelby (R-AL), complained that not only would the standards burden industry with ruinously high compliance costs, but several studies of toxic effects of air and water pollutants had later proven faulty.  Thus, given their serious policy consequences, data collected by the EPA for setting its standards should be available for public inspection.  Shelby attached to the Omnibus Appropriations Act for fiscal year (FY) 1999 an amendment requiring federal agencies to disclose “all data produced under a [federally funded research] award.”  The scientific community arose in alarm.[v]

Led by the National Academy of Sciences, the scientific establishment persuaded the White House’s Office of Management and Budget (OMB, which oversees the writing of regulatory language implementing federal statutes) to define research data subject to public disclosure in a way that would serve its expanding proprietary interests.  The OMB ultimately excluded from research data subject to FOIA disclosure any data supporting regulations having an impact of less than $100 million, and “materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law” (e.g., intellectual property.)  The Shelby amendment, once it emerged from OMB’s process, had a lethal weakness: What constituted research “data” under OMB’s ‘clarifying’ definitions could be determined only by those who held it, viz., the same research scientists wanting to retain the data for their own uses.[vi]

Just how important public access to the results of its own investment in intellectual capital had become was evident with the completion in 2000 of the joint U.S. and British Human Genome Project.  Prime Minister Tony Blair’s and President Bill Clinton’s joint statement that “the genome should be made freely available to scientists everywhere” sent bio-technology stocks plummeting.  Investors had concluded that the federal government would oppose patenting human genomic data.  In a hasty effort at damage control, the White House urged the securities markets to read the leaders’ joint statement more carefully, where they would find: “Intellectual property protection for gene-based inventions will also play an important role in stimulating the development of important new health care products.”[vii] (To continue reading about the proprietary capture of public intellectual capital, see The New Enclosure-Part III).


[i] Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents?  Reevaluating the Patent ‘Privilege’ in Historical Context,”  Cornell Law Review, Vol. 92, No. 953 (2007).

[ii] U.S. Supreme Court, Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).

[iii] U.S. Supreme Court, Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).

[iv] Departments of Defense and Energy, the National Science Foundation, National Institutes of Health, and the National Aeronautics and Space Administration.

[v] National Research Council, Bits of Power: Issues in Global Access to Scientific Data (Washington, DC: National Research Council, 1997).

[vi] Sylvia Kraemer, Science and Technology Policy in the United States: Open Systems in Action (Rutgers Univesity Press, 2006, pp. 102-108.

[vii] White House Office of Science and Technology Policy, “Joint Statement by President Clinton and Prime Minister Tony Blair of the U.K.,” March 14, 2000.  Alex Berenson and Nicholas Wade, “The Markets: Stocks & Bonds; A Call for Sharing of Research Causes Gene Stocks to Plunge,” The New York Times (March 15, 2000).

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