"The legislation comes in response to concerns that publishers have —whether real or perceived— about the federal government taking the works that exist in our journals after we have expended considerable labor, effort, and costs associated with evaluating and filtering research articles," says Martin Frank, executive director of the American Physiological Society, which publishes 14 research journals....
"We believe that it is in the public interest to foster this beneficial publishing activity," ACS President Bruce. E. Bursten says in a letter to the bill's sponsors. He adds that this bill will help sustain the publishing enterprise.
The bill creates the category of "extrinsic work," which is work resulting from multiple-source funding. Work that falls into this new category would be protected by copyright laws and would not fall under federal policy, including NIH's open-access policy, which mandates that final, peer-reviewed manuscripts must be made freely accessible. This new category would apply to research funded by any combination of federal and private sources. It would also apply to articles published in journals, regardless of who funds the research, because the articles are the result of a peer-review and publication process funded by a nongovernment source....
"Work that falls into this new category would be protected by copyright laws..." Note to the ACS: research articles by NIH-funded researchers are already protected by copyright law (unless they are written by NIH employees), and Congress has already insisted that they be protected by copyright law. As I pointed out in an article in August 2007:
[N]ote that the language [in the appropriations bill adopted by Congress in December 2007] contains a curious proviso: "That the NIH shall implement the public access policy in a manner consistent with copyright law." ...[W]e have to distinguish two questions: whether the [NIH policy] does in fact violate copyright and whether this proviso gives publishers any leverage they didn't already have. The second question shows why the proviso is so curious. It goes without saying that an agency shouldn't violate copyright law, just as it shouldn't violate laws against speeding, spitting, or cutting hair without a license. The proviso is what lawyers call surplusage; it spells out an obligation that would apply even if not spelled out.
But Congress spelled it out anyway, which should help everyone stay focused. If federal law already requires the NIH to conform to copyright law, and Congress reaffirmed that principle just last year, then why are the publishers back in Congress asking for more? Because they want more than compliance with copyright law. They want the cushy old arrangement in which publicly-funded research was turned over to private corporations (for-profit or non-profit) for dissemination at any prices that the market would bear.
Publishers are in a hard spot. The NIH policy already conforms to copyright law, but they have to use copyright as the pretext to get the attention of the Judiciary Committee (which has jurisdiction over copyright, not science or science funding). This creates pressure to disguise revenue arguments as copyright arguments. Will this fool anyone? Will supporters of the content industry in Congress vote with the publishing lobby even if they see that it doesn't really have a copyright complaint?
Even the focus on revenue, however, makes two dubious assumptions beyond the dubious copyright assumption: that the NIH policy really will diminish publisher revenues and that this will undermine peer review. I address both assumptions at length in an article from September 2007.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.