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February 16, 2009

Banning Open Access

Posted by John Baez

On February 3rd, John Conyers of the US House of Representatives re-introduced a bill to repeal the National Institute of Health’s public access policy, which says that research funded by this agency must be made freely available on a database called PubMed Central.

But that’s not all! This bill, ironically called the Fair Copyright in Research Works Act, would also ban all other federal agencies from adopting open-access policies!

When he introduced the same bill last year, Conyers said it would “preserve the intellectual property rights of our Nation’s researchers” and “restore intellectual property protections for scientists, researchers and publishers…” You can see a critical analysis of this claim on the SPARC Open Access Newsletter, where Peter Suber writes (here I paraphrase for brevity):

In an earlier joint statement (April 2008), before the Conyers bill was introduced, the American Association of Publishers and the DC Principles Coalition asserted that the NIH policy denied “authors and publishers the benefits of their copyrights…

The DC Principles Coalition, the American Association of Publishers, and the Copyright Alliance all say that the NIH policy “forces publishers to surrender their copyrighted scientific journal articles….” The Copyright Alliance goes a step further and says that a public research grant is no reason to “commandeer the resulting research paper and treat it as a public domain work”. BTW, the word “surrender” was first introduced into this context by the press release announcing the launch of PRISM in August 2007.

If the publishers could claim infringement, they would. They would have a remedy at law and would not need to amend the law to get it. But a specific charge like infringement is too easy to evaluate and dismiss. Hence, we face nebulous charges like “inconsistency with copyright law” or “diminished copyright protections”.

The NIH uses a simple and elegant method to avoid infringement. When researchers publish an article based on NIH-funded research, they must retain the right to grant PubMed Central a non-exclusive license to disseminate a copy of their peer-reviewed manuscript. They may transfer all the remaining rights to publishers, if they wish, and they usually do.

There many ways to describe the result. Open access through PubMed Central is expressly authorized by the copyright holders. Publishers no longer acquire full copyright to articles by NIH-funded authors, at least when those authors comply with the policy. Publishers don’t acquire the rights they would need to negate the NIH’s non-exclusive license or claim infringement. When researchers sign their funding contracts with the NIH, they are not committing any publisher to anything, let alone taking any intellectual property from anyone; they are only committing themselves to demand certain terms when they later write up and try to publish articles based on their funded research. The NIH is taking advantage of two important facts: (1) that authors are the copyright holders until they decide to transfer one or more of their rights to someone else, and (2) that researchers sign funding contracts before they sign publishing contracts.

(By the way, I’m a bit puzzled by the DC Principles Coalition. At first glance they seem to be an organization of nonprofit journals that favor free access to their content. But, they also seem to be busy lobbying against the NIH’s public access policy, saying it’s a “waste of research dollars” that “will create confusion and put authors at risk of inadvertently violating copyright agreements”. So, what’s their real goal?)

33 Nobel laureates have written open letter against the Conyers bill. For more information, and advice on how to help stop this bill from becoming law, read what Peter Subers has to say.

A tip of the hat to Mike Stay for pointing this out!

Posted at February 16, 2009 4:39 AM UTC

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4 Comments & 2 Trackbacks

Re: Banning Open Access

If Conyers really wanted to “protect the rights of researchers”, he would be proposing a bill to prevent publishers from forcing the signing over of copyrights, not a bill that takes even more rights from researchers! *rollseyes*

Posted by: Yoo on February 16, 2009 6:21 AM | Permalink | Reply to this

“Dave” Conyers?

Help me out here, I can only find a John Conyers listed as a U.S. Representative…

Posted by: son1 on February 16, 2009 12:50 PM | Permalink | Reply to this

Re: “Dave” Conyers?

Whoops. Fixed.

Posted by: John Baez on February 16, 2009 7:52 PM | Permalink | Reply to this
Read the post Banning Open Access II
Weblog: The n-Category Café
Excerpt: Conyers defends his bill which would prohibit the National Institute of Health from mandating open access to the research they fund.
Tracked: March 8, 2009 3:26 AM
Read the post Open Access to Taxpayer-Funded Research
Weblog: The n-Category Café
Excerpt: n-Café regulars will know about Representative Conyer's bill that would repeal the National Institute of Health's public access policy and forbid other US funding agencies from mandating open access to research papers written with the help of f...
Tracked: July 2, 2009 12:07 PM

Re: Banning Open Access

The Dutch universities signed an Open Access agreement with various publishers.
Springer is included, but Elsevier is not.

University link
(I am told that unlike what is stated here. The number of Open Choice publications is now “unlimited”.)
Springer link

Springer operates a program called Springer Open Choice for the majority of its journals. Open Choice allows authors to decide how their articles are published in the leading and highly respected journals that Springer publishes. Choosing open access means making your journal article freely available to everyone, everywhere in exchange for your payment of an open access publication fee.
If authors choose open access in the Springer Open Choice program, they will not be required to transfer their copyright. The final published version of all articles can be archived in institutional or funder repositories and can be made publicly accessible immediately.

Another Source.

I am not sure about the full consequences of this deal yet, but it seems to be a step in the right direction.

Posted by: Bas Spitters on March 26, 2010 9:13 AM | Permalink | Reply to this

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