Open Access News

News from the open access movement

Tuesday, September 16, 2008

Conyers bill on ice until at least 2009

After Hearing, Sweeping Anti-NIH Bill To Be Shelved —for Now, Library Journal Academic Newswire, September 16, 2008.

Within hours of last week’s hearing on the Fair Copyright in Research Works Act, a sweeping, publisher-supported bill that would ban public access measures similar to the National Institutes of Health’s (NIH), lawmakers all but ruled out action on the bill in 2008. With Congress set to adjourn on September 26, Rep. Howard Berman (D-CA), who chairs the subcommittee on the Courts, the Internet and Intellectual Property, which sponsored last week’s hearing, said the bill would be held until at least next year.

In comments after the hearing, however, John Conyers (D-MI), lashed out at the House Appropriations Committee, which passed the public access mandate as part of an omnibus spending bill in 2007. Conyers told CongressDaily that he was frustrated by the Appropriations’ Committee’s refusal to engage repeated questions from the House Judiciary Committee, which Conyers chairs, about the copyright and intellectual property implications associated with the NIH mandate. Conyers fumed that appropriators acted “summarily, unilaterally and probably incorrectly” in enacting the mandate, and suggested the mandate was at the center of a Congressional turf war....

Notably, however, when asked for a comment on the bill just hours before its introduction last week, a Conyers’ staffer told the LJ Academic Newswire the legislation was likely coming out of Berman’s office, suggesting Conyers’ post-hearing remarks may represent more bluster than any deep commitment to seeing through the bill he introduced last week. Not only did the bill not come out of Berman’s office, Berman declined to publicly support the bill, saying he needed to “learn more about the issues.”

The bill itself, meanwhile, a broadly-written measure, was criticized by copyright experts. “The bill is an odd duck because it would do far more than simply end public access to NIH-funded research,” noted Villanova law professor Michael Carroll on his blog. Carroll said that if passed, the sweeping bill could “impliedly amend” other provisions by which taxpayers procure services—and suggested there was a good reason why Appropriations didn’t consult Conyers before passing the mandate: because “assertions that the policy somehow diminishes copyrights lacks any basis in law.”

The bill’s supporters in the publishing community, meanwhile, all praised the measure....The rhetoric was far more charged, however, in a release from publisher-supported advocacy group the Copyright Alliance. “The mere fact that a scientist accepts as part of her funding a federal grant should not enable the federal government to commandeer the resulting research paper and treat it as a public domain work,” noted executive director Patrick Ross. “Authors and publishers don’t need the feds playing Rumpelstiltskin by returning after a year to take their children away.”

Open Access blogger Peter Suber, who has commented extensively on the NIH efforts blasted that rhetoric as flatly false, inaccurate, and dishonest. “First, the NIH policy regulates grantees, not publishers,” he observed. “Second, the policy…doesn’t archive the published versions of the articles, let alone deprive publishers of them or nullify any of the rights in them that authors may have transferred to publishers. When NIH grantees transfer rights to publishers, publishers may hold and exercise those rights in full.”