Open Access News

News from the open access movement

Friday, September 05, 2008

Publishers go to Congress to undo the NIH policy

Andrew Albanese, NIH Public Access Policy To Face Copyright Challenge in Congress? Library Journal, September 5, 2008.  Excerpt:

In less than a week, on Thursday, September 11, the Subcommittee on Courts, the Internet, and Intellectual Property of the House of Representatives' Judiciary Committee is scheduled to hold a hearing on what sources tell LJ is a legislative attempt to redress publishers' concerns that public access policies —namely the recently enacted policy at the National Institutes of Health (NIH)— conflict with copyright and intellectual property laws. No text has yet been released for the legislation, tentatively titled the “Fair Copyright in Research Works Act.” Nor has the hearing appeared on the subcommittee's schedule.

The legislative hearing comes after publishers succeeded in adding a key phrase to the NIH public access mandate just before the bill’s passage in December, 2007 —that the NIH policy be implemented “in a manner consistent with copyright law.” As LJ reported then, that simple phrase appeared to position publishers for a possible legal or legislative challenge to the policy.

In recent months, the possibility of a legal or legislative challenge began to seem almost certain: in comments to the NIH on implementation this spring, the Association of American Publishers (AAP) included a legal memo from law firm Proskauer Rose backing publisher claims that the NIH policy conflicts with copyright law, and in June, NIH director Elias Zerhouni denied publishers’ request that the policy go through a federal rulemaking process.

Shortly after passage of the NIH public access policy, AAP’s VP for legal and government affairs Allan Adler reiterated publishers’ position that the measure was “unprecedented” and “inconsistent” with intellectual property laws, and vowed publishers would continue opposition. “[The policy] undermines publishers’ ability to exercise their copyrights in the published articles…threatens the intellectual freedom of authors, including their choice to seek publication in journals that may refuse to accept proposed articles that would be subject to the new mandate,” he said. AAP officials, contacted today, were unavailable for comment.

Anticipating such a challenge, officials at SPARC and the Association of Research Libraries, however, have strongly denied that the NIH public access policy conflicts with copyright, last year preparing a memo of their own. “Contrary to the STM publishers’ assertions, this policy does not create a statutory exception or limitation to an investigator’s copyright,” the memo states. “Rather, it merely requires the NIH to condition its grant of funding to the investigator on his agreement to provide PMC [PubMed Central] with a copy of his article for the purpose of making the article publicly available via PMC.” ...


  • Here it comes.  Albanese is right that publishers have been giving signs that they'd do this, and he's right that friends of OA have been preparing.  He cites the SPARC memo from last year, but you should also see the latest version of that memo, from this year.
  • Read Allan Adler's words carefully:  "[The policy] undermines publishers' ability to exercise their copyrights in the published articles…threatens the intellectual freedom of authors, including their choice to seek publication in journals that may refuse to accept proposed articles that would be subject to the new mandate."  The most important thing to notice is that he doesn't even allege that the policy infringes copyrights.  There's a good reason for that:  the policy doesn't infringe copyrights.  NIH grantees retain the right to authorize public access through PubMed Central, even if they transfer all other rights to a publisher.  Hence, public access through PubMed Central is authorized by the copyright holders.  As I put it when describing the NIH policy in February, "publishers cannot complain that this infringes a right they possess, only that it would infringe a right they wished they possessed." 
  • The other allegations are easily dealt with.   For example, does the NIH policy really limit author freedom to publish in journals that refuse to publish NIH-funded authors?  Or should we lay that one at the feet of publishers?
  • The publisher complaint boils down to this:  "OK, the policy doesn't violate the letter of copyright law, but it violates the spirit, which is that our ability to profit from research we didn't conduct, write up, or fund should not be put at risk just so that publicly-funded research can be made more useful, by reaching everyone who can make use of it, or just so that taxpayers don't have to pay twice for access.  OK, it's true that authors are the initial copyright holders in their work, and they are free to transfer all, some, or none of their rights to publishers.  But the spirit of copyright law is that they should transfer all of their rights to publishers.  We've grown to depend on it.  OK, it's true that we don't really know that the NIH policy will reduce our revenues, and there may be good reasons to think it won't, but at least the policy creates a risk.  The government should protect us from risks created by new new and better ways of doing things.  It violates the spirit of copyright law for a government agency like the NIH to put the taxpayers' interests ahead of our private interests as an industry." 
  • I'm just about to leave the country for a week, during which I'll have limited opportunities for blogging and email.  But I'll try to stay on top of this story.  Gavin and I will blog the developments as they unfold, and I'll have a lot more to say in the October issue of SOAN.

UpdateAlert to US Citizens:  If your representative is a member of the House Judiciary Committee, please contact him/her before the end of business on Tuesday, September 9, and express your support for the NIH policy.  There are committee members from AL, AZ, CA, FL, GA, IA, IL, IN, MA, MI, MN, NC, NY, OH, TN, TX, UT, WI, and VA.  Some members know nothing about the policy but what the publishing lobby has told them.  Explain why the policy matters to you and make it personal.  Send copies of your message to the committee leadership (John Conyers, Chairman, D-MI, and Lamar Smith, Ranking Member, R-TX).  If your representative is not a member of the committee, then you can send a message to the committee leadership alone.  For the contact info on any member, see Congress Merge.  If you can address copyright issues, do.  This committee has jurisdiction over copyright issues, and copyright is the hook publishers used to get the committee's attention.  It's tiring to mobilize all over again, but it's necessary.  Please write and spread the word.  Keep a copy of your message.  You may need it again.

Update.  Also see:  Is NIH Public Access Mandate In Danger? Library Journal Academic Newswire, September 9, 2008.