Open Access News

News from the open access movement

Friday, September 12, 2008

AAUP also wants to overturn the NIH policy

The American Association of University Presses has released its September 10 letter to the Congressional sponsors of the Fair Copyright in Research Works Act.  Excerpt:

...This very important bill will ensure that future actions by the federal government will not diminish the copyright protection currently accorded to scholarly works whose research may be federally funded, in full or in part, but whose publication, in any medium, requires that significant value be added, and paid for, from other sources.

AAUP has 116 members in 42 states, the District of Columbia, and Puerto Rico....On average, 90% of their operating revenue comes from their publishing operations, the vast majority of it from sales of the books and journals they publish, and only 10% as a subsidy from their parent institutions....

Copyright is the legal foundation that permits recovery of those costs and investment in publishing new work. Weakening copyright protection through federal mandates that publications resulting from government-funded research be made freely available undermines that foundation and threatens the very system that makes such work of high value in the first place....

The members of AAUP strongly support open access to scholarly literature by whatever means, so long as those means include a funding or business model that will maintain the investment required to keep older work available and continue to publish new work. However, trying to expand access by diminishing copyright protection in works arising from federally-funded research is going entirely in the wrong direction, and will badly erode the capacity of AAUP members to publish such work in their books and journals....


  • The AAUP is more candid on the primacy of revenue than other publishers who have endorsed the bill.  But it still asserts too strong a connection between the revenue problem and a supposed copyright problem:
  • Before the NIH policy, NIH-funded authors typically transferred full copyright to publishers.  Under the new mandatory version of the policy, NIH-funded authors must retain the non-exclusive right to authorize the NIH to disseminate their peer-reviewed manuscripts.  They may, and still typically do, transfer all other rights to publishers.  As a result, publishers are receiving something slightly less than the full bundle of rights they formerly received.  But that's not "reduced copyright protection" for publishers.  Publishers still have full protection to exercise the rights they acquire from authors.  They're just upset that they're acquiring fewer rights from authors.  The reduction may be a problem for them and it may (or may not) affect their revenues.  But it doesn't follow that it's a legal injury which Congress ought to remedy, rather than, say, a financial risk that publishers must accept as part of life in a changing world.  Nor does it follow that the publishers' preferred remedy isn't itself a kind of "reduced copyright protection" --for authors, who are the first copyright holders here and who should be protected in their freedom to bargain away one of their rights in exchange for a large research grant.  There's no reason why the Judiciary Committee should care more to protect publishers from financial risk than to protect authors in disposing their copyrights as they see fit. 
  • I'm very aware that the NIH policy is mandatory.  But we shouldn't misunderstand what that means.  The NIH is putting an OA condition on a voluntary contract.  It isn't requiring OA unconditionally, and couldn't possibly do so.  The relevant author freedom here isn't the freedom to deposit in PMC, which existed under the previous (non-mandatory) version of the policy, but the freedom to accept a research grant which requires deposit in PMC.  The guardians of "copyright protection" should want to protect the freedom of all rightsholders (authors, publishers, or other) to exercise the rights they hold when they hold them.  The publishers are calling on Congress to tilt an unbalanced copyright system further toward themselves.
  • Is your institution a member of the AAUP?  If so, does your institution want to overturn the NIH policy?  Does your institution realize that the AAUP is speaking for it in its letter to the Judiciary Committee?  If you don't want the AAUP to speak for your institution this way, make your complaint known to the AAUP, to the leadership of the House Judiciary Committee (John Conyers, Chairman, D-MI, and Lamar Smith, Ranking Member, R-TX), and to the public.