Copyright Alliance and AAP welcome re-introduction of anti-open access billFebruary 6, 2009
Two publisher groups which supported the Conyers bill
the last time around are supporting it again. No surprises
The Copyright Alliance praises House Judiciary
Committee Chairman John Conyers for introducing HR-801, the Fair Copyright in Research Works Act….
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
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
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
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
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
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
- The NIH policy does not violate copyright
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.