SPARC and ARL have released a white paper, NIH Public Access Policy Does Not Affect U.S. Copyright Law, that refutes assertions made by the Association of American Publishers about the NIH Public Access Policy.
Here's an excerpt from the Summary:
Contrary to the AAP assertions, the NIH Public Access Policy does not affect U.S. copyright law in any way. NIH has added a condition to pre-existing licensing terms in its grant agreements that affirms it can legally provide public access to publicly funded research. This change in the terms of NIH grant agreements is fully consistent with copyright law. Copyright is an author’s right. Researchers are the authors of the articles they write with NIH support. In exchange for substantial federal funding, these researchers voluntarily agree to grant the federal government a license to provide public access to the results of publicly funded research. NIH receives a non-exclusive license from federally funded researchers, who retain their copyrights and are free to enter into traditional publication agreements with biomedical journals or assign these anywhere they so choose, subject to the license to NIH.
This change in the terms of the Public Access Policy has no relation to United States compliance with international intellectual property treaties. The Berne Convention on Copyright and the TRIPS Agreement concern the substance of copyright law, not the terms of licenses granted to the United States in exchange for federal funding. It is longstanding federal policy that in all federal contracts that pay for the creation of copyrighted works, the funding agency must receive a copyright license in exchange for federal funding. It is well recognized that these licenses given by authors have no effect on the robust set of protections given to authors in the United States Copyright Act and similarly raise no issues with respect to international copyright law.