Open Access News

The DC Principles Coalition (DCPC) and the Professional/Scholarly Publishing (PSP) Division of the Association of American Publishers (AAP) released their joint letter to the House sponsors of the Fair Copyright in Research Works Act (FCRWA), September 10, 2008.  This came out before today's hearing on the bill.  One of the letter's co-authors, Martin Frank, was a witness at the hearing.  Excerpt:

...A recent congressional mandate at the National Institutes of Health (NIH) forces publishers to surrender their copyrighted scientific journal articles for free public access twelve months after publication and sets a dangerous precedent. This mandate in effect reduces copyright protection for this important class of works to only one year. The Fair Copyright in Research Works Act rightly prevents the government from imposing mandates that diminish copyright protection for private-sector, value-added research articles....

Also see the Statement on the FCRWA from Patrick Ross, Executive Director of the Copyright Alliance, September 10, 2008.  Excerpt:

...A recent congressional mandate at the National Institutes of Health (NIH) forces publishers to surrender their copyrighted scientific journal articles for free public access 12 months after publication....

“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....[T]aking the scientist’s copyrighted interpretation of the data is not fair to other funders, and it is certainly not fair to the publisher. A publisher improves the work through a rigorous peer review process and develops it for publication. Authors and publishers don’t need the feds playing Rumpelstiltskin by returning after a year to take their children away.

“That publisher has earned the right as a copyright owner to pursue a return on his investment, a pursuit made more difficult when its copyright term is essentially reduced to one year....”

Comments

• Both documents use the inaccurate and dishonest word "surrender" to describe what the NIH policy makes publishers do to their publications.  First, the NIH policy regulates grantees, not publishers.  Second, the policy merely archives copies of authors' peer-reviewed manuscripts in PubMed Central.  It 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.
• Note that the use of the word "surrender" in this context was pioneered by the first press release (August 23, 2007) from PRISM, the anti-OA lobbying organization widely ridiculed last year for claiming (among other things) that "public access equals government censorship".  Whether or not PRISM is back as an organization, its dishonest advocacy is back.
• The Copyright Alliance reaches new heights of rhetorical excess with the word "commandeer".  (It would be at least as accurate to say that the traditional publishing model commandeers publicly-funded research, and holds it for ransom.)
• Both documents say that the NIH policy essentially reduces the term of copyright to one year.  Not true.  The free online PMC edition (released within the first year after publication) is not the copy-edited, formatted, paginated published edition.  Publishers retain full control of the published edition, and may refuse permission for free online access until the copyright expires 70 years after the author's death.
• The Copyright Alliance document says that after the 12 month embargo runs, the US government treats deposited manuscripts as "public domain work[s]".  Is this deeply uninformed or deliberately deceptive?  Do you expect better from an organization specializing in copyright?
• Even putting that flat falsehood to one side, both documents leave the impression that the NIH policy infringes publisher copyrights.  But it doesn't.  NIH grantees retain the non-exclusive right to allow PMC to disseminate their peer-reviewed manuscripts; they may transfer all other rights to a publisher.  So when PMC does disseminate those manuscripts, it has the permission of the copyright holders.  As I put it in a February 2008 article on the policy, "publishers cannot complain that this infringes a right they possess, only that it would infringe a right they wished they possessed."  As the debate unfolds, remember this:  There is no copyright infringement here.  There may be reduced publisher revenues, and there may not.  But there is no infringement.
• The DCPC/AAP/PSP letter is signed by 43 publishers.  I'd like to know whether all 43 actually approve of this harmful bill or whether they are just members of either the DC Principles Coalition and/or the AAP/PSP.  At least 34 signatories are society publishers.  Did they consult their membership before opposing the NIH policy?  (BTW, compare these 34 with the 425 societies publishing 450 full OA journals.)
• Researchers:  Has your professional society signed on to the DCPC/AAP/PSP letter?  If so, let your society know internally and online that it's not speaking for its members, that it's putting its interests as a publisher ahead of its interests as a scholarly society, and that it's acting more like a commercial firm than a non-profit organization dedicated to research.  At the same time, send copies of your message to the leadership of the House Judiciary Committee (John Conyers, Chairman, D-MI, and Lamar Smith, Ranking Member, R-TX).  Organize other members of your society to deliver the same message --to the society itself, to the Judiciary Committee, and publicly online-- and elect leadership that will speak for interests of researchers.
• The last time PRISM overplayed its hand, nine important academic publishers disavowed it or took public steps to distance themselves from it.  It's time for publisher-members of DCPC or AAP/PSP who think their organizations' rhetoric goes too far to step forward.  Please don't just make a public statement; send your statement to the leadership of the House Judiciary Committee.

Update.  Also see the AAP/PSP press release on the new bill, and the DCPC press release on Martin Frank's testimony, both September 11, 2008.

Update (9/19/08).  The American Institute of Physics also supports the Conyers bill.  See the summary of its position, its arguments, and its September 11 letter to the Judiciary Committee.

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