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Tuesday, July 29, 2008

William Patry on the NIH policy and copyright

William Patry, Open Access and the NIH, The Patry Copyright Blog, July 28, 2008.  Patry is the Senior Copyright Counsel at Google, and formerly copyright counsel to the U.S. House of Representatives Judiciary Committee.

This excerpt picks up after Patry reviews (1) the 1978 deliberations in Congress on whether to make research by government-funded scientists uncopyrightable, as Congress had already done for government-employed scientists, (2) the NIH OA policy, and (3) the APA's short-lived deposit fee for NIH-funded authors.

...STM publishers are claiming that the... [NIH policy has implications for] copyright law, and are attempting to have the Judiciary Committee intervene on their behalf. The claim that the NIH policy raises copyright issues is absurd. First, the policy does not reach the journal at all; only individual articles. Publishers’ investment is thus left untouched entirely. Publishers did not invest a dime in the individual articles, and thus have no investment to complain about. They still have a 12 month window of exclusivity for the articles, which is quite long enough to ensure that their only investment – in the journal – is protected. As reviewed at the beginning of this posting, Congress could have chosen to deny all protection to STM articles funded in whole or in part by the government. It is surprising by taking a less extreme, balanced approach, Congress is now being attacked by those who contributed nothing financially to the creation of the works.

Patry may initially have missed the fact that the NIH policy applies to peer-reviewed manuscripts (as opposed to unrefereed preprints), but a reader pointed that out in the comment section.  Patry replies that it doesn't change his conclusion:

...[This argument] would be stronger, IMHO, if (1) the STM publisher paid for the peer review, and (2) actually edited the article. But even then, why do you disregard the money that NIH has sunk in? Why shouldn't you flip the analysis and require the publisher, as a condition of publishing the article and charging for the journal, to reimburse NIH for some of NIH's expenses? STM publishers seem quite exercised over articles they pay nothing for being made available to the public, but apparently have no qualms about making money off of research funded by the public. Their moral outrage and accounting seems curiously unidirectional.