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Fair Copyright in Research Works Act Challenges Federal Funding
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Posted On September 22, 2008


Last year, when the National Institutes of Health (NIH) endorsed legislation that would mandate the submission of federally funded, accepted, peer-reviewed research to PubMed Central (www.pubmedcentral.nih.gov), some large STM publishers fought back. Even after defeat, when the Omnibus bill passed on Dec. 26, 2007, the publishers said they would come back to the table on the issue of copyright—and so they have. How successful this effort will be is unknown. The previous lobbying efforts even brought a response from the White House. On Sept. 9, 2008, Chairman of the House Judiciary Committee Rep. John Conyers, D-Mich., introduced the bill HR 6845, Fair Copyright in Research Works Act, that would not only reverse the NIH Public Access Policy but would not allow other federal agencies to put similar policies into place (http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.6845.IH:). The text of the bill proposes that "No Federal agency may, in connection with a funding agreement, impose or cause the imposition of any term or condition that requires the transfer or license to or for a Federal agency of any right provided under copyright law."

This bill far exceeds the NIH’s mandate that all researchers funded with NIH funds must submit their works to PubMedCentral, as this would extend to all agencies. Moreover, the NIH legislation clearly stated that the NIH could not violate copyright laws with its mandate and now, to wit, the publishers are going to Congress to ask for a fundamental change in the copyright laws.

Some publishers have joined forces with the recording industry to support the bill as part of the Copyright Alliance, a lobbying group started in May 2007. On the website (www.copyrightalliance.org) they invite people to join "one voi©e: a network of like-minded, creative individuals who speak with a collective voice in upholding creator rights." Here they make their argument: "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. A copyright owner is supposed to control the right of reproduction, distribution, and public performance and display. But those uses are now all being exercised by the federal government without consent of the copyright owner. If these were in fact government documents no legislative steps would have been necessary. This is a disturbing precedent, a government taking that doesn’t even come with the requisite compensation for the owner."

One of the most curious things about the alliance’s website is that it emphasizes the creative endeavors of musicians and artists, which, last I looked, was not in the mission of the NIH. The other aspect that was disturbing was the model of what could easily be described as the "wicked witch" of fair use video that adorns the opening page of the site.

The current pending legislation was the subject of a congressional subcommittee hearing on Sept. 11. Four witnesses were called to testify before members of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. NIH director Elias Zerhouni and Heather Joseph, executive director of SPARC, spoke against the bill. Ralph Oman, former U.S. Register of Copyrights, and Martin Frank, the executive director of The American Physiological Society and coordinator of the DC Principles Coalition, testified in support of the bill.

"NIH has undermined our publishing activities by diminishing a basic principle under copyright—the right to control the distribution of the works we publish," Frank said. "The NIH could have provided access to their funded research without diminishing copyright protections."

Zerhouni explained that the NIH spent an average of $300,000 in taxpayer money for every paper produced, and that he sought to maximize the return on that investment for the public, and for scientists. "This is not an issue of economic impact. This is not an issue of peer review," he argued.

Oman’s appearance was viewed as a particular exception to the testimonies, as was reported in Library Journal, "Oman’s mere presence raised perhaps the key question of the day: where was the current Register of Copyrights, Marybeth Peters? Peters, who succeeded Oman as Register of Copyrights in 1994, neither testified at the hearing nor submitted written testimony, nor has she offered any public comment about a bill that would seriously affect copyright."

Others, however, were not quiet about the bill. Perhaps they should have been. In my opinion, one of the most outrageous comments perhaps made on the subject came from Allan Adler, Association of American Publishers, vice president for legal and governmental affairs, who stated that "Government does not fund peer-reviewed journal articles—publishers do," and that the bill would "preserve the incentives for peer-review publishing."

"Think of it as the Clear Skies Act for copyright; an odious piece of corporate welfare wrapped in a friendly layer of doublespeak," noted Paul N. Courant, university librarian at the University of Michigan, in his blog. "This is anything but fair. Indeed, it is manifestly unfair to the taxpayers who ultimately pay for the research, and on whose behalf the research is conducted."

The Alliance for Taxpayer Access (ATA) notes that (www.taxpayeraccess.org/nih/HR6845calltoaction.html) "In particular, the bill would repeal the longstanding ‘federal purpose’ doctrine, under which all federal agencies that fund the creation of a copyrighted work must reserve a ‘royalty-free, nonexclusive right to reproduce, publish, or otherwise use the work’ for any federal purpose. This will severely limit the ability of U.S. federal agencies to use works that they have funded to support and fulfill agency missions and to communicate with and educate the public." The ATA is a diverse alliance representing taxpayers, patients, physicians, researchers, and institutions that support open public access to taxpayer-funded research.

As the Congress is about to recess on Sept. 26, all indications are that the bill will be shelved until next year, although there are concerns that the bill’s language could be re-introduced into another bill. The ATA is calling on supporters of the NIH policy to communicate their support to the leaders of the House and Senate Judiciary Committees before Sept. 24.

For a more in-depth (and opinionated) view of this bill, see my Focus on Publishing column in the November issue of Information Today.


Robin Peek is an associate professor at the Graduate School of Library and Information Science at Simmons College. She also writes a monthly column called Focus on Publishing for Information Today.

Email Robin Peek

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