A Tale of Two Bills: The Research Works Act and Federal Research Public Access Act

“The RWA didn’t explicitly say that it would amend copyright law, but it could could have done so implicitly, or by superseding any parts of current law inconsistent with the new law.  Under the NIH policy, authors give permission for OA when they are still the copyright holders.  Even when they later transfer some rights to publishers, they retain the right to authorize OA.  Hence, OA through NIH is authorized by the relevant rightsholder, in this case by the author.  But RWA Section 2.1 would have required publisher consent for that OA.  It would have required publisher consent even when the holder of the relevant rights under current law had already consented.  A consent which suffices under current copyright law would not suffice under RWA.  Either that would violate US copyright law or amend it pro tanto (that is, amend it to the extent necessary to avoid irreconcilable conflict between the old and new statutes).

This may seem like a technical point of law.  But it’s the most radical aspect of RWA.  Under current law, in the US and around the world, authors are the copyright holders in their work until or unless they decide to transfer rights to someone else, such as a publisher.  Copyright consists of a bundle of rights, and authors may lawfully transfer all, some, or none of those rights, as they see fit.  If they retain the right to authorize OA, then no other permission is needed.  Under RWA, however, publishers would have held a new right, beyond copyright, to overrule the rights exercised by authors under copyright law.

It was an unprecedented power grab by publishers.  Unlike past, lopsided legal reforms to benefit publishers, this one was not limited to enhancing the rights of copyright holders against users and consumers.  This one would have harmed all copyright holders except publishers, and benefited publishers even when they were not copyright holders….”

Re-introduction of the bill to kill the NIH policy

“The Conyers bill is back (or baaaack).  This is the bill to repeal the OA policy at the NIH and block similar policies at all other federal agencies.  Its sponsors named it the Fair Copyright in Research Works Act, but the bill is to fair copyright what the Patriot Act was to patriotism….”

A bill to overturn the NIH policy

“In their rhetoric, publishers speak as if they are the copyright holders for these articles, and as if the NIH is blocking their full exercise of these rights or even expropriating them.  But that is uninformed or deceptive.  Because the NIH requires grantees to retain a key right, NIH-funded authors now transfer less than the full bundle of rights to publishers.  Publishers don’t like that, and it may be a problem for them, but it’s not a legal problem.  Despite their pose, publishers are not the copyright holders in these articles, without qualification, even after authors sign copyright transfer agreements.  The NIH method of avoiding infringement means that there are plural rightsholders and divided rights in these articles:  the authors have retained at least one and publishers have the rest.  Publishers don’t acquire the key right which would allow them to deny permission for OA or claim infringement or expropriation.  As for the rights publishers do acquire, the NIH policy does nothing to diminish publisher freedom to hold and exercise them.  

Have publishers forgotten this central feature of the NIH policy?  Have its legal consequences still not sunk in?  I find that theory hard to believe.  It would entail that they haven’t read, haven’t remembered, or haven’t understood the policy on which they have focused so much animus and lawyer time.  And it doesn’t square with their justified reluctance to claim actual infringement.  But if they do understand this aspect of the policy, then we’re only left with another cynical theory:  that publishers deliberately stretch the truth by speaking without qualification as if they were the copyright holders for these articles.  But strong or weak, the theory would explain a lot.  If publishers did receive full copyright from authors, or if they believed they did, or if they had some reason to say they did, then their public rhetoric would make start to make sense.  In that world, it would make sense to say that OA through PMC, against their wishes, would violate, diminish, or nullify one of their rights.  

The snag, of course, is that the rhetoric is false, no matter what explains it.  NIH-funded authors retain the key right and don’t transfer full copyright to publishers.  This is what I meant when I said (in SOAN for February 2008) that “publishers cannot complain that [the NIH policy] infringes a right they possess, only that it would infringe a right they wished they possessed.” …”

Chance discovery of forgotten 1960s ‘preprint’ experiment

“For years, scientists have complained that it can take months or even years for a scientific discovery to be published, because of the slowness of peer review. To cut through this problem, researchers in physics and mathematics have long used “preprints” – preliminary versions of their scientific findings published on internet servers for anyone to read. In 2013, similar services were launched for biology, and many scientists now use them. This is traditionally viewed as an example of biology finally catching up with physics, but following a chance discovery in the archives of Cold Spring Harbor Laboratory, Matthew Cobb, a scientist and historian at the University of Manchester, has unearthed a long-forgotten experiment in biology preprints that took place in the 1960s, and has written about them in a study publishing 16 November in the open access journal PLOS Biology.”

MedPix

“MedPix® is a free open-access online database of medical images, teaching cases, and clinical topics, integrating images and textual metadata including over 12,000 patient case scenarios, 9,000 topics, and nearly 59,000 images. Our primary target audience includes physicians and nurses, allied health professionals, medical students, nursing students and others interested in medical knowledge….We are actively seeking new case contributions – which become a digital publication of MedPix® at the National Library of Medicine. Please join us in supporting one of the world’s largest open-access teaching files….”

How biologists pioneered preprints—with paper and postage | Science

Abstract:  As a growing number of biologists formally share their papers in online repositories, it’s often said that they are catching up with physicists, who have posted preprints in the online arXiv server since 1991. But biomedical scientists were actually first, reveals a researcher who has traced a “forgotten experiment” from the 1960s, when the National Institutes of Health (NIH) in Bethesda, Maryland, created a preprint exchange but shut it down when publishers objected. Matthew Cobb, a biologist and science historian at the University of Manchester in the United Kingdom, recounts how starting in 1961, a 70-year-old NIH administrator named Errett Albritton formed what he called information exchange groups, consisting of interested scientists working in the same subfield.

Health Research Alliance

“The Health Research Alliance, a collaborative member organization of nonprofit research funders, is committed to maximizing the impact of biomedical research to improve human health….The HRA partnered with the National Library of Medicine (NLM) to enable HRA member-funded awardees to deposit their publications into PubMed Central (PMC) with an embargo no longer than 12 months….”

NOT-OD-16-149: NIH Policy on the Dissemination of NIH-Funded Clinical Trial Information

“The National Institutes of Health (NIH) is issuing this policy to promote broad and responsible dissemination of information from NIH-funded clinical trials through ClinicalTrials.gov.  The policy establishes the expectation that all investigators conducting clinical trials funded in whole or in part by the NIH will ensure that these trials are registered at ClinicalTrials.gov, and that results information of these trials is submitted to ClinicalTrials.gov.  The policy is complementary to the statutory and regulatory reporting requirements. …”

Notes on the Research Works Act – Harvard Open Access Project

“The Research Works Act (HR 3699) would repeal the OA policy at the NIH and block similar policies at other federal agencies.

The main section (Section 2) is brief: “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that — (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.” …”

The NIH Public Access Policy (April 2012)

“NO HARM TO PUBLISHERS IS EVIDENT: • Publishers retain up to a 12?month embargo on NIH?funded papers before they are made available to the public without charge under fair use principles. • The Public Access requirement took effect in 2008. While the U.S. economy has suffered a downturn during the time period 2007 to 2011, scientific publishing has grown: – The number of journals dedicated to publishing biological sciences/agriculture articles and medicine/health articles increased 15% and 19%, respectively.5 – The average subscription prices of biology journals and health sciences journals increased 26% and 23%, respectively.6 – Publishers forecast increases to the rate of growth of the medical journal market, from 4.5% in 2011 to 6.3% in 2014.7 …

KEY FACTS ABOUT PMC: • Over 2.4 million articles are now in PMC. In addition to the NIH?funded papers deposited into PMC, publishers voluntarily deposit more than 100,000 papers per year. • Every weekday, 700,000 users access the database, retrieving over 1.5 million articles. • Based on internet addresses, an estimated 25% of users are from universities, 17% are from companies, and 40% from the general public …”