Federal copyright law and years of precedent grant copyright owners control of the right of reproduction, distribution, and public performance and display. But in a troubling reversal of this incentivizing precedent, Congress – without consultation of members with expertise in copyright law – has given the federal government control over the reproduction and distribution of certain research works without regard to the rights of publishers.
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 peer-reviewed research paper and treat it as a public domain work.
Grants are provided to pay for the research and resulting data, which is generally freely and immediately available. But taking the scientist’s copyrighted interpretation of the data is not fair to other funders, and it violates the rights of the publisher. A publisher improves the work through a rigorous peer review process and develops it for publication....
The Association of American Publishers welcomed the re-introduction of legislation to safeguard the rights of authors and publishers of copyrighted, peer-reviewed scientific journal articles, and praised House Judiciary Committee Chairman John Conyers Jr....
The Fair Copyright in Research Works Act, HR 801...would help keep the Federal Government from undermining copyright protection for journal articles where private-sector publishers have added such significant value. The legislation would address serious concerns that the mandate is inconsistent with policies underlying U.S. copyright law and undermines our nation’s ability to comply with international copyright treaty obligations....
Both statements say or imply that the NIH policy violates publishers' copyrights. That is false. If it were true, or if the publishers honestly believed it to be true, they would be in court, where they would already have a remedy for copyright infringement. Instead, they are in Congress lobbying for this bill which would amend US copyright law. They must change the law to get what they want because the NIH policy does not violate current copyright law.
Both statement say or imply that publishers are the copyright owners, without qualification, on the articles reporting the results of NIH funded research. That is false. The NIH policy requires grantees to retain a key right and use it to authorize OA. There are three important consequences: (1) OA from the NIH is authorized by the copyright holders, (2) NIH-funded authors no longer transfer the full bundle of copyrights to publishers, and publishers no longer acquire the full bundle of copyrights on these articles, (3) publishers acquire fewer rights from authors than in the past, but have undiminished power to enforce the rights they do acquire.
The rhetoric that the policy "commandeers" publishers' articles or forces publishers to "surrender" their articles is false. It suggests that these articles are publishers' property, without qualification, and the NIH somehow expropriates their property or prevents publishers from enforcing their rights. But see the previous bullet: publishers are not the full owners of these articles, and they remain free to hold all the rights they acquire and to enforce all the rights they hold. Perhaps I should also add that US copyright law protects the right of authors to divide the bundle of copyright and transfer some rights, rather than all rights, to a publisher.
It's true that publishers invest money in organizing peer review. But the commandeer/surrender rhetoric implies that they discover, after the fact, helplessly, that the NIH will distribute OA copies of the peer-reviewed manuscripts. That is false. When NIH-funded authors approach publishers, they don't merely ask "will you publish my article?" but also "will you publish it under these terms?" It's a business proposition that publishers may take or leave. Publishers are virtually unanimous in taking it. But in these public statements they pretend that the government is taking their property and suppress the fact that they accept the offer with their eyes open.
The publishing lobby and Rep. Conyers are unhappy that the original policy was adopted without consulting the House Judiciary Committee, which vets new bills raising copyright issues. It's true that the Judiciary Committee was not consulted. While that may have created a regrettable turf battle among House committees, there ought to be a way to resolve it without distorting the facts or enacting bad policy.
The NIH policy does not violate copyright law. Don't take my word for it. Read the judgment of 46 copyright lawyers. Pretending that the policy violates copyright in order to justify review by the Judiciary Committee does nothing to clarify the committee's jurisdiction or respect its expertise on copyright issues.
While the original policy was adopted without consulting the Judiciary Committee, the Judiciary Committee has since held a hearing (September 11, 2008) on the issues raised by the policy and by this particular bill to overturn it. The no-consultation objection is now moot. Continuing to press the point puts the turf war ahead of the public interest in good policy.
Bypassing the Judiciary Committee the first time around was not a stealth maneuver. William Patry, former Copyright Counsel to the House Judiciary Committee, says it's "absurd" to think that the NIH policy raises copyright issues or that it had to be reviewed by the Judiciary Committee.
For a more detailed analysis of all of these points, see my article from last October on the Conyers bill and the rhetoric of the publishing lobby.
Peter Suber at 2/05/2009 03:08:00 PM.
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.