Forty-six law professors and specialists in copyright law wrote to the House Judiciary Committee on September 8 to show that the publishing lobby's objections to the NIH policy misrepresent US copyright law. The Committee had the letter in hand when it convened the September 11 hearing on the Conyers bill. The letter is now online. Excerpt:
... We write to respond to serious misstatements relating to copyright law contained in a recent submission [from the AAP] to the National Institutes of Health with respect to the relationship between the NIH Final Policy on Public Access and certain aspects of U.S. and international copyright law. The letter (hereafter "the Proskauer Letter") was written by Jon A. Baumgarten of Proskauer Rose LLP, dated May 30, 2008....
The Proskauer Letter alleges that the NIH Policy may constitute an involuntary transfer of copyright in violation of Section 201(e) of the Copyright Act. Contrary to the Proskauer Letter's assertions, the Policy does not create an involuntary transfer, a compulsory license, or a taking of the publishers' or investigators' copyright....[I]f the investigator chooses not to receive NIH funding, the investigator has no obligation to provide the article to PMC or a copyright license to NIH. But if the investigator elects to receive NIH funding, he or she accepts the terms of the grant agreement, which include the requirement to deposit the article with PMC so that the article can be made publicly accessible within one year after publication. Because the investigator has this basic choice, the policy does not constitute an involuntary transfer.
Furthermore, because the author makes this choice long before the publisher enters into the picture, the policy does not take any intellectual property away from the publisher. When the investigator transfers copyright to the publisher, as most publishers require as a condition of publication, the copyright is already subject to the non-exclusive license granted by the investigator to NIH. Thus, the policy does not change the scope of the publisher's copyright after the publisher has acquired it....
Building on the erroneous premise that the Policy is an involuntary transfer of copyright or a compulsory license, the Proskauer Letter then suggests that the NIH Policy might violate U.S. obligations under the Article 9 of the Berne Convention or Article 13 of the TRIPS agreement. This argument lacks any basis in law. As discussed above, the NIH Policy governs the terms of contracts, not exceptions to copyright law. As such, the Policy in no way implicates Article 13 of TRIPS or Article 9 of the Berne Convention, which address permissible copyright exceptions. These treaty provisions are completely silent on the issue of the terms a licensee can require of a copyright owner in exchange for valuable consideration....
Congress frequently imposes conditions on recipients of this federal funding. While one might question the wisdom of a particular condition, Congress without doubt has the authority to impose them. Similarly, Congress has the authority to require NIH grantees to deposit their manuscripts with PMC and to grant a license to make these publicly accessible over the Internet within a year of publication. Such a requirement conflicts neither with the Copyright Act nor with international treaty obligations....
[PS: Omitting the 46 signatures.]
Posted by
Peter Suber at 9/30/2008 11:37:00 AM.
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.
I recommend the OA tracking project (OATP) as the best way to stay on top of new OA developments. You can read the OATP feed on a blog-like web page or subscribe to it by RSS, email, or Twitter. You can also help build the feed by tagging new developments you encounter.
