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

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    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.