Copyright Alliance and AAP welcome re-introduction of anti-open access bill

February 6, 2009

Two publisher groups which supported the Conyers bill
the last time around are supporting it again. No surprises

From the Statement of Patrick Ross, Executive Director of the
, February 4, 2009:

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….

From the press release of the Association of American Publishers,
February 4, 2009:

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.

    1. 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.
    2. 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
    3. 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
  • 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.