The n-Category Café

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!