Open Access News

News from the open access movement

Friday, September 12, 2008

Unintended consequences of the publishers' anti-OA bill

Michael Carroll, Attacking Public Access Through the Copyright Act, Carrollogos, September 12, 2008.  Carroll is a Visiting Professor of Law at the American University, Washington College of Law, and a member of the Board of Creative Commons.  Excerpt:

On September 9th, Mr. Conyers introduced H.R. 6845, "The Fair Copyright in Research Works Act", into the House of Representatives. There is nothing fair about this bill at all, and it should be opposed by anyone who cares about public access to publicly funded research....

The bill is an odd duck because it would do far more than simply end public access to NIH-funded research. It would also impliedly amend public procurement law and impliedly repeal portions of the longstanding "rights in data" contracting provisions of the Federal Acquisition Regulation, the DFARS, and portions of the intangible property provisions of OMB Circular A-110.

Traditionally, the Copyright Act has not been used for this purpose. Certain journal publishers have asserted to NIH and to the Committee that the NIH policy is in some vague way inconsistent with the Copyright Act and U.S. international copyright obligations. This assertion lacks any basis in law, and a group of 47 professors at American law schools who teach or write about copyright law sent a letter to the committee making this point....

[PS:  Omitting an annotated summary of the bill.]

Comment.  This is very helpful.  But it raises some new questions.  Did the Judiciary Committee intend to amend public procurement law or any other federal law unrelated to public access for publicly-funded research?  Who will gain and who will lose by the amendment to procurement law, and do the losers know about this bill?