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.” …”

Scoring the players in European copyright reform.

“At Politico, Chris Spillane and Ryan Heath have estimated who has the most and least power over the direction of European copyright law.

Much the news is bad for readers, users, consumers, and open access. For example:

The quietest and weakest players on the board — bar none — are university academics.

Nearly as quiet and weak are the academic libraries represented by LIBER (Ligue des Bibliothèques Européennes de Recherche, or Association of European Research Libraries).

Elsevier is much louder and more effective than academics or libraries. …”

The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright : Hector Postigo : Free Download & Streaming : Internet Archive

“The movement against restrictive digital copyright protection arose largely in response to the excesses of the Digital Millennium Copyright Act (DMCA) of 1998. In The Digital Rights Movement, Hector Postigo shows that what began as an assertion of consumer rights to digital content has become something broader: a movement concerned not just with consumers and gadgets but with cultural ownership. Increasingly stringent laws and technological measures are more than incoveniences; they lock up access to our “cultural commons.”

Postigo describes the legislative history of the DMCA and how policy “blind spots” produced a law at odds with existing and emerging consumer practices. Yet the DMCA established a political and legal rationale brought to bear on digital media, the Internet, and other new technologies. Drawing on social movement theory and science and technology studies, Postigo presents case studies of resistance to increased control over digital media, describing a host of tactics that range from hacking to lobbying.

Postigo discusses the movement’s new, user-centered conception of “fair use” that seeks to legitimize noncommercial personal and creative uses such as copying legitimately purchased content and remixing music and video tracks. He introduces the concept of technological resistance—when hackers and users design and deploy technologies that allows access to digital content despite technological protection mechanisms—as the flip side to the technological enforcement represented by digital copy protection and a crucial tactic for the movement.

This is an open access title from MIT Press (2012)….”

[AAP open letter to Donald Trump, Dec 15, 2016]

From the AAP’s open letter to Donald Trump, December 15, 2016: “AAP is the national trade association of the U.S. book and journal publishing industry. AAP’s nearly 400 members include most major commercial publishers in the U.S….Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide….Professional & Scholarly Publishers…publish the vast majority of books, journals, software, databases, and other digital content that are used by scholars and professionals in science, medicine, technology, business, law, and the social sciences and humanities, and are leaders in promoting public access policies that benefit science and society….Businesses that market services and devices through which their customers may access, store and enjoy popular copyrighted works in digital formats benefit from weak or unenforceable copyright protection because their services and devices become more attractive to users as the ordinary market requirements to obtain books, watch movies or listen to music are reduced or eliminated online. Sadly, the same is true for some nonprofit cultural institutions that exist to provide free public access to diverse informational materials – including copyrighted works of original expression….”