Category: Copyright

Lawrence Lessig Replies to Rep. John Conyers about the Fair Copyright in Research Works Act

Lawrence Lessig has replied to Rep. John Conyers' "A Reply to Larry Lessig," which was written in response to "Is John Conyers Shilling for Special Interests?" by Lawrence Lessig and Michael Eisen.

Here's an excerpt:

Supporting citizens' funding of the nation's elections—as Mr. Conyers has—is an important first step. That one change, I believe, would do more than any other to restore trustworthiness in Congress.

But that's not all you could do, Mr. Conyers. You have it within your power to remove any doubt about the reasons you have for sponsoring the legislation you sponsor: Stop accepting contributions from the interests your committee regulates. This was the principle of at least some committee chairmen in the past. It is practically unheard of today. But you could set an important example for others, and for America, about how an uncorrupted system of government might work. And you could do so without any risk to your own position—because the product of your forty years of extraordinary work for the citizens of Michigan means that they'll return you to office whether or not you spend one dime on a reelection. Indeed, if you did this, I'd promise to come to Michigan and hand out leaflets for your campaign.

Until you do this, Mr. Conyers, don't lecture me about "crossing a line." For I intend to cross this line as often as I can, the outrage and scorn of Members of Congress notwithstanding. This is no time to play nice. And yours is just the first in a series of many such stories to follow—targeting Republicans as well as Democrats, people who we agree with on substance as well as those we don't, always focusing on bad bills that make sense only if you follow the money.

New York Action Alert: Rep. Carolyn Maloney Sponsors Fair Copyright in Research Works Act

Rep. Carolyn B. Maloney (D-NY) has become the first sponsor of the Fair Copyright in Research Works Act who is not a member of the House Judiciary Committee.

If you are in her district and oppose the bill, you can contact her to express your opposition in the following ways:

  • DC Office: Phone: (202) 225-7944; Fax: (202) 225-4709
  • New York Office: Phone: (212) 860-0606, Fax: (212) 860-0704
  • Web Form: The Hill form; Maloney's form

The ALA call to action and the Alliance for Taxpayer Access call to action have example text and talking points that you can use. (Note that the ALA call Web form cannot be used to contact Maloney.)

Peter Suber offers this advice:

As usual, you will be more persuasive if you can explain why the NIH policy matters to you, your work, or your organization. Be specific and be personal. Speak for yourself, but if you can, get your institution to send a letter as well. Save your message; you may need to adapt and reuse it later. And please spread the word to your NY colleagues.

For further information about the Fair Copyright in Research Works Act, see Suber's article "Re-introduction of the Bill to Kill the NIH Policy" and his post "Aiming Criticism at the Right Target."

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?

The Congressional Research Service has released The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?. (Thanks to ResourceShelf.)

Here's an excerpt:

The Google Book Search Library Project, announced in December 2004, raised important questions about infringing reproduction and fair use under copyright law. Google planned to digitize, index, and display "snippets" of print books in the collections of five major libraries without the permission of the books' copyright holders, if any. Authors and publishers owning copyrights to these books sued Google in September and October 2005, seeking to enjoin and recover damages for Google's alleged infringement of their exclusive rights to reproduce and publicly display their works. Google and proponents of its Library Project disputed these allegations. They essentially contended that Google's proposed uses were not infringing because Google allowed rights holders to "opt out" of having their books digitized or indexed. They also argued that, even if Google's proposed uses were infringing, they constituted fair uses under copyright law.

The arguments of the parties and their supporters highlighted several questions of first impression. First, does an entity conducting an unauthorized digitization and indexing project avoid committing copyright infringement by offering rights holders the opportunity to "opt out," or request removal or exclusion of their content? Is requiring rights holders to take steps to stop allegedly infringing digitization and indexing like requiring rights holders to use meta-tags to keep search engines from indexing online content? Or do rights holders employ sufficient measures to keep their books from being digitized and indexed online by publishing in print? Second, can unauthorized digitization, indexing, and display of "snippets" of print works constitute a fair use? Assuming unauthorized indexing and display of "snippets" are fair uses, can digitization claim to be a fair use on the grounds that apparently prima facie infringing activities that facilitate legitimate uses are fair uses?

On October 28, 2008, Google, authors, and publishers announced a proposed settlement, which, if approved by the court, could leave these and related questions unanswered. However, although a court granted preliminary approval to the settlement on November 17, 2008, final approval is still pending. Until final approval is granted, any rights holder belonging to the proposed settlement class—which includes "all persons having copyright interests in books" in the United States—could object to the agreement. The court could also reject the agreement as unfair, unreasonable, or inadequate. Moreover, even assuming final court approval, future cases may raise similar questions about infringing reproduction and fair use.

Michael Eisen Replies to Rep. John Conyers about the Fair Copyright in Research Works Act

Michael Eisen has replied to Rep. John Conyers' "A Reply to Larry Lessig," which was written in response to "Is John Conyers Shilling for Special Interests?" by Lawrence Lessig and Michael Eisen. (Thanks to Open Access News.)

Here's an excerpt:

Unfortunately, Representative Conyers actions do not reflect his words. This bill was introduced in the last Congress. The Judiciary Committee then held hearings on the bill, in which even the publishers' own witnesses pointed out flaws in its logic and approach. In particular, a previous Registrar of Copyrights, clearly sympathetic to the publishers' cause, acknowledged that the NIH Policy was in perfect accord with US copyright law and practice. If Conyers were so interested in dealing with a complex issue in a fair and reasonable way, why then did he completely ignore the results of this hearing and reintroduce the exact same bill—one that clearly reflects the opinions of only one side in this debate?

Peter Suber Replies to Rep. John Conyers about the Fair Copyright in Research Works Act

Peter Suber has replied to Rep. John Conyers' "A Reply to Larry Lessig," which was written in response to "Is John Conyers Shilling for Special Interests?" by Lawrence Lessig and Michael Eisen.

Here's an excerpt:

I thank Rep. Conyers for making a public defense of his bill in a forum which offers the public a chance to respond.  I also respect his record on other issues, including civil rights and bankruptcy, and his current efforts to compel the testimony of Karl Rove and Harriet Miers. On research publications, however, he's backing the wrong horse, and his arguments for siding with publishers against scientists and taxpayers are not strong.

(1) Rep. Conyers insists that the House Judiciary Committee should have been consulted on the original proposal for an open-access policy at the NIH. However, William Patry, former copyright counsel to the House Judiciary Committee (and now chief copyright counsel at Google), believes that "the claim that the NIH policy raises copyright issues is absurd," and that the Judiciary Committee did not need to be in the loop.  I understand that the House Rules Committee came to a similar decision when formally asked. . . .

Clearly Rep. Conyers disagrees with these views. But they should suffice to show that bypassing the Judiciary Committee was not itself a corrupt maneuver.

If it's important to revisit the question, I hope Rep. Conyers can do it without backing a bill from a special interest lobby that would reduce taxpayer access to taxpayer-funded research. A turf war is not a good excuse for bad policy. On the merits, see points 2 and 3 below.

For more independent views that the NIH policy does not raise copyright issues, see the open letter to the Judiciary Committee from 46 lawyers and law professors specializing in copyright.

(2) Rep. Conyers accepts the publisher argument that the NIH policy will defund peer review by causing journal cancellations. The short answer to that objection is that (a) much higher levels of open-access archiving, of the kind the NIH now requires, have not caused journal cancellations in physics, the one field in which we already have evidence; (b) subscription-based journals are not the only peer-reviewed journals; and (c) if the NIH policy does eventually cause journal cancellations, then libraries would experience huge savings which they could redirect to peer-reviewed OA journals, whose business models do not bet against the internet, public access, or the NIH policy.

For a detailed analysis of the objection that government-mandated open access archiving will undermine peer review, and a point-by-point rebuttal, see my article in the SPARC Open Access Newsletter from September 2007.

(3) Rep. Conyers writes that the NIH policy "reverses a long-standing and highly successful copyright policy for federally-funded work and sets a precedent that will have significant negative consequences for scientific research." It's true that the policy reverses a long-standing copyright policy.  But the previous policy was unsuccessful and perverse, and had the effect of steering publicly-funded research into journals accessible only to subscribers, and whose subscription prices have been rising faster than inflation for three decades. Both houses of Congress and the President agreed to reverse that policy in order to allow the NIH to provide free online access to the authors' peer-reviewed manuscripts (not the published editions) 12 months after publication (not immediately). This was good for researchers, good for physicians and other medical practitioners, good for patients and their families, and good for taxpayers. It was necessary to make NIH research accessible to everyone who could use it and necessary to increase the return on our large national investment in research. It was necessary from simple fairness, to give taxpayers—professional researchers and lay readers alike—access to the research they funded.

On the "significant negative consequences for scientific research":  should we believe publishers who want to sell access to publicly-funded research, or the research community itself, as represented by 33 US Nobel laureates in science, the Association of American Universities, the Association of Research Libraries, and a host of patient advocacy groups?

For further information about the Fair Copyright in Research Works Act, see Suber's article "Re-introduction of the Bill to Kill the NIH policy" and his post "Aiming Criticism at the Right Target."

Rep. John Conyers Replies to Lessig and Eisen about Fair Copyright in Research Works Act

Rep. John Conyers has replied to Lawrence Lessig and Michael Eisen's "Is John Conyers Shilling for Special Interests?" article about the Fair Copyright in Research Works Act.

Here's an excerpt:

The policy Professor Lessig supports, they [opponents] argue, would limit publishers' ability to charge for subscriptions since the same articles will soon be publicly available for free. If journals begin closing their doors or curtailing peer review, or foist peer review costs on academic authors (who are already pay from their limited budgets printing costs in some cases), the ultimate harm will be to open inquiry and scientific progress may be severe. And the journals most likely to be affected may be non-profit, scientific society based journals. Once again, a policy change slipped through the appropriations process in the dark of night may enhance open access to information, but it may have unintended consequences that are severe. This only emphasizes the need for proper consideration of these issues in open session.

Digital Videos from Texas A&M's the Changing Landscape of Scholarly Communication in the Digital Age Symposium

Texas A&M University has made digital videos of presentations from its recent the Changing Landscape of Scholarly Communication in the Digital Age Symposium available.

Speakers included:

  • Georgia K. Harper, Scholarly Communications Advisor, University of Texas at Austin
  • Michael J. Jensen, Director of Publishing Technologies, National Academies Press
  • Michael A. Keller, Stanford University Librarian, Director of Academic Information Resources, Publisher of HighWire Press, and Publisher of Stanford University Press
  • Clifford A. Lynch, Executive Director, Coalition for Networked Information
  • David E. Shulenburger, Vice President for Academic Affairs, National Association for State Universities and Land Grant Colleges
  • Stuart M. Shieber, James O. Welch, Jr. and Virginia B. Welch Professor of Computer Science and Director of the Office of Scholarly Communication, Harvard University
  • Donald J. Waters, Program Officer for Scholarly Communications, Andrew W. Mellon Foundation

DCC Overview of the Science Commons

The Digital Curation Centre has released an overview of the Science Commons as part of its Legal Watch Papers series.

Here's an excerpt:

Science Commons is a branch of Creative Commons that aims to make the Web work for science the way that it currently works for culture. It is a non-profit organisation aimed at accelerating the research cycle which they define as "the continuous production and reuse of knowledge that is at the heart of the scientific method." Science Commons describes itself as having three interlocking initiatives: making scientific research 'reuseful'; enabling 'one-click' access to research materials; and integrating fragmented information sources

Following the Money Trail: MAPLight.org Report on Campaign Contributions and the Fair Copyright in Research Works Act

MAPLight.org has released "Report on HR 801, Fair Copyright in Research Works Act: Report Shows Campaign Contributions Given to Sponsors of Fair Copyright in Research Works Act." (Thanks to the Huffington Post and Open Access News.)

Here's an excerpt:

MAPLight.org's research team released data today showing campaign contributions given to members of the House Committee on the Judiciary from publishing interests during the 2008 election cycle (Jan. 2007 through Dec. 2008). MAPLight.org analyzed campaign contribution data provided by the Center for Responsive Politics and determined that the publishing industry gave an average of $5,150 to each of the bill's five bill sponsors and an average of $2,506 to each of the other 34 non-sponsor members of the Committee. Total publishing industry contributions given to the House Committee on the Judiciary were $110,950.

The New Creative Commons License: CC0 1.0 Universal Lets Rights Holders Waive Their Rights

The Creative Commons has released CC0 1.0 Universal, the "no rights reserved" license.

Here's an excerpt from the CC0 FAQ:

Are CC0 and CC's Public Domain Dedication and Certification ("PDDC") the same?

No. PDDC was intended to serve two purposes—to allow copyright holders to "dedicate" a work to the public domain, and to allow people to "certify" a work as being in the public domain. Our experience with PDDC shows that having a single tool performing both of these functions can be confusing.

CC0 is a single purpose tool, designed to take on the dedication function PDDC has been performing, but in a more complete and legally robust way. CC0 is universal in its applicability, intended for use world-wide by anyone anywhere holding copyright or database interests in a work. PDDC is based on U.S. law, and the enforceability of its dedication function outside of the U.S. is not certain.

Read more about it at "CC0: Waiving Copyrights" and "Want to Waive Copyright? Creative Commons Has a Tool for You."

Amazon Lets Publishers Decide on Whether Their Books Can Be Read Aloud by Kindle on Title-by-Title Basis

Amazon will let publishers determine whether their e-books can be read aloud by the Kindle on a title-by-title basis.

Here's an excerpt from the press release:

Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rightsholders will be more comfortable with the text-to-speech feature if they are in the driver's seat.

Therefore, we are modifying our systems so that rightsholders can decide on a title by title basis whether they want text-to-speech enabled or disabled for any particular title. We have already begun to work on the technical changes required to give authors and publishers that choice. With this new level of control, publishers and authors will be able to decide for themselves whether it is in their commercial interests to leave text-to-speech enabled. We believe many will decide that it is.

As reported previously, the Authors Guild was opposed to an unbridled read aloud Kindle capability. Here's an excerpt from "The Engadget Interview: Paul Aiken, Executive Director of the Authors Guild."

[Aiken] Well, the legal objections fall in a couple categories. One is the basic copyright objection which I know has been bandied about a lot online, and that objection comes in two parts. There's the unauthorized reproduction of the work which is one claim under copyright law—for that there has to be fixation of the copy and there's a legal question as to whether or not there's adequate fixation in the Kindle. The second claim is that text-to-speech creates a derivative work, and under most theories of copyright law, there doesn't have to be fixation for there to be a derivative work created.

Amazon's decision has been controversial. For example,here's an excerpt from Lawrence Lessig's "Caving into Bullies (Aka, Here We Go Again)":

We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works—Alice's Adventures in Wonderland—was marked to forbid the book to be read aloud. . . .

But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called "representatives" of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we're all arguably worse off.

We're worse off with the Kindle because if the right get set by the industry that publishers get to control a right which Congress hasn't given them—the right to control whether I can read my book to my kid, or my Kindle can read a book to me—users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do.

ACRL, ALA, and ARL Will File Google Book Search Settlement Amicus Brief

The American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries will file an amicus brief authored by Jonathan Band about the Google Book Search Settlement.

Read more about it at "Library Organizations to File Amicus Brief in Google Book Search Settlement."

New Zealand Delays Law That Would Terminate Internet Accounts of Repeat Copyright Infringers

New Zealand's prime minister is delaying the implementation of a controversial new copyright law that will force ISP's to terminate the accounts of repeat copyright infringers until March 27th in order to study whether implementing the law is feasible.

Here's an excerpt from the law:

92A Internet service provider must have policy for terminating accounts of repeat infringer

  1. An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
  2. In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

Read more about it at "New Zealand P2P Disconnection Plan Delayed after Outcry"; "New Zealand Three Strikes Mandate Delayed"; and "Three Strikes Encounters Political, Netroots Opposition Down Under."

Blog Report on the Legal and Ethical Implications of Large-Scale Digitization of Manuscript Collections Symposium

Merrilee Proffitt of RLG Programs has posted a blog report on the Legal and Ethical Implications of Large-Scale Digitization of Manuscript Collections symposium at the University of North Carolina, Chapel Hill.

E-Book Duopoly?: Chairman of the Board of Association of American Publishers on the Google Book Search Settlement

Richard Sarnoff, Chairman of the Board of Association of American Publishers, discussed the Google Book Search Copyright Class Action Settlement at Princeton University's Center for Information Technology Policy last week.

Timothy B. Lee reports on his comments in "Publisher Speculates about Amazon/Google E-Book 'Duopoly'."

Walt Crawford on the Google Books Search Settlement

The latest issue of Cites & Insights: Crawford at Large is dedicated to an in-depth (30-page) look at the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

The agreement could be a lot worse. The outcome could also be a lot better. I'm sure Google would agree with both statements, as it finds itself in businesses where it has neither expertise nor much chance of advertising-level profits. At the same time, the copyright maximalists didn't quite win this round. We'll almost certainly get somewhat better access to several million OP books—and will have to hope (and work to see) that the price (monetary and otherwise) isn't too high.

In 2007-2008, Reed Elsevier Inc. Made Contributions to Eight House Judiciary Committee Members

According to data from OpenSecrets.org, Reed Elsevier Inc. made contributions to eight House Judiciary Committee members during 2007-2008.

  1. John Conyers, Jr., (D) Michigan, 14th, Chair: $4,000
  2. Howard Berman, (D) California, 28th: $3,000
  3. Howard Coble, (R) North Carolina, 6th: $4,000
  4. Darrell Issa, (R) California, 49th: $1,000
  5. Sheila Jackson Lee, (D) Texas, 18th: $1,000
  6. Jerrold Nadler, (D) New York, 8th: $1,000
  7. Lamar Smith, (R) Texas, 21st: $2,000
  8. Robert Wexler, (D) Florida, 19th: $2,000

It also made 2007-2008 contributions to two Senate Judiciary Committee members:

  1. Arlen Specter, R-Pennsylvania: $2,000
  2. Jeff Sessions, R-Alabama: $1,000

ALA Issues Call to Action about Fair Copyright in Research Works Act

ALA has issued a call to action about the Fair Copyright in Research Works Act (H.R. 801). The alert includes a link to a Web form that will allow you to e-mail a House Judiciary Committee Member from your district about the bill (will not work if your Representative does not serve on the Judiciary Committee).

"ALPSP Response to the Intellectual Property Office Issues Paper '© the Future'"

The Association of Learned and Professional Society Publishing has released "ALPSP Response to the Intellectual Property Office Issues Paper '© the Future'."

Here's an excerpt:

In any discussions on current or future copyright exceptions we believe that the Berne Convention 3-step test should continue to be of fundamental importance. It is noted that one of the concerns of the Issues Paper is that the boundaries of many copyright exceptions are unclear and that this creates uncertainty for both users and rights holders. Clearly certain elements of the legislation were written before the digital era where perfect copies can now be made and distributed with ease; we believe that some areas of the legislation could therefore usefully be clarified. However, we see no requirement for the introduction of any expanded or new exceptions to the copyright legislation at a time when the technological landscape and the market’s response to it are changing very rapidly. We are currently seeing many activities and initiatives taking place to facilitate the use of new technology by all stakeholders in the copyright chain and we believe these should be afforded sufficient time to adapt and evolve. We feel that at such a time it would be better to leave any new boundary setting to the Courts who can respond flexibly to issues as they arise rather than to legislate.

Support Open Access: Contact House Judiciary Committee Members to Save the NIH Public Access Policy

As indicated in recent postings ("Fair Copyright in Research Works Act: Ten Associations and Advocacy Groups Send Letter to Judiciary Committee Members Opposing Act" and "Urgent Call to Action: Conyers Bill Opposing NIH Open Access Policy May Soon Come to House Vote"), the fight over the Fair Copyright in Research Works Act (H.R. 801) is heating up.

If you want to oppose the bill and support the NIH Public Access policy and open access, you should contact members of the House Judiciary Committee and your Representative immediately by letter, e-mail, fax, or phone. If a Judiciary Committee member is in your district, your opposition will have considerably more impact. If you are uncertain, about who your House member is, you can use the The Hill's search form to find out. The "Contact" tab for the House member's The Hill record, includes a "Contact [Congressional representative] via Web Form" function that can be used to send e-mail messages.

Below is a list of Judiciary Committee members and a draft letter from the Alliance for Taxpayer Access’ call to action.

Draft letter text:

Dear Representative;

On behalf of [your organization], I strongly urge you to oppose H.R. 801, “the Fair Copyright in Research Works Act,” introduced to the House Judiciary Committee on February 3, 2009. This bill would amend the U.S. Copyright Code, prohibiting federal agencies from requiring as a condition of funding agreements public access to the products of the research they fund. This will significantly inhibit our ability to advance scientific discovery and to stimulate innovation in all scientific disciplines.

Most critically, H.R. 801 would reverse the National Institutes of Health (NIH) Public Access Policy, prohibit American taxpayers from accessing the results of the crucial biomedical research funded by their taxpayer dollars, and stifle critical advancements in life-saving research and scientific discovery.

Because of the NIH Public Access Policy, millions of Americans now have access to vital health care information from the NIH’s PubMed Central database. Under the current policy, nearly 3,000 new biomedical manuscripts are deposited for public accessibility each month. H.R.801 would prohibit the deposit of these manuscripts, seriously impeding the ability of researchers, physicians, health care professionals, and families to access and use this critical health-related information in a timely manner.

H.R. 801 affects not only the results of biomedical research produced by the NIH, but also scientific research coming from all other federal agencies. Access to critical information on energy, the environment, climate change, and hundreds of other areas that directly impact the lives and well being of the public would be unfairly limited by this proposed legislation.

[Why you support taxpayer access and the NIH policy].

The NIH and other agencies must be allowed to ensure timely, public access to the results of research funded with taxpayer dollars. Please oppose H.R.801.

Postscript: ALA has issued a call to action about the Fair Copyright in Research Works Act (H.R. 801). The alert includes a link to a Web form that will allow you to e-mail a House Judiciary Committee Member from your district about the bill (will not work if your Representative does not serve on the Judiciary Committee).

The Alliance for Taxpayer Access has a Web form (with letter text) that you can use to e-mail your Congressional representatives.

The bill has been referred to the Subcommittee on Courts and Competition Policy.

Fair Copyright in Research Works Act: Ten Associations and Advocacy Groups Send Letter to Judiciary Committee Members Opposing Act

Ten associations and advocacy groups, including AALL, ACRL, ALA, ARL, and GWLA, have sent a letter to House Judiciary Committee members opposing the Fair Copyright in Research Works Act (H.R. 801).

Here's an excerpt:

The U.S. government funds research with the expectation that new ideas and discoveries from the research will propel science, stimulate the economy, and improve the lives and welfare of Americans. Public support for science is enhanced when the public directly sees the benefits from our nation's investment in scientific research. Yet H.R. 801 would reverse the only U.S. policy for public access to research, at the National Institutes of Health (NIH), and make it impossible for other agencies to enact similar policies.

Scientific research is advanced by broad dissemination of knowledge, and the subsequent building upon the work of others. To this end, the NIH Public Access Policy ensures that the results of our nation's $29 billion annual investment in research reach the broadest possible audience. The Policy requires that, in exchange for receiving federal research dollars, grantees deposit the final electronic manuscript of their peer-reviewed research results into PubMed Central, NIH’s digital archive, to be made publicly available within 12 months—and was specifically implemented in full compliance with current U.S. copyright law.

The NIH Policy achieves several notable goals: First, it ensures broad public access to the results of NIH's funded research, allowing scientists and researchers to collaborate and engage in cutting-edge research. Such access allows for greater sharing of information, speeding discovery, medical advances, and innovations.

Second, the NIH Policy ensures that the U.S. government has a permanent archive of these critical, publicly funded biomedical research results, ensuring that results can be built upon by not only this generation, but also future generations, of researchers.

Finally, the Policy creates a welcome degree of accountability and transparency, which enable us to better manage our collective investments in the NIH research portfolio and ensure the maximum possible benefits to the public in return.

At the direction of Congress, the NIH Public Access Policy, in place as a voluntary measure since 2005, was recently strengthened to a mandatory policy. As a result, the rate of eligible manuscripts being deposited for public accessibility quickly increased from 19% to 60%. This requirement proved crucial to ensuring that the more than 80,000 articles resulting from NIH funding each year are, for the first time, available to any researcher, physician, faculty member, student, or member of the public who wants them.

H.R.801 presupposes that the NIH Public Access Policy undermines the rights of the author and conflicts with U.S. copyright law. As library organizations and allies we fully respect copyright law and the protection it affords content creators, content owners, and content users. NIH-funded research is copyrightable and copyright belongs to the author. The NIH Policy requires only the grant of a non-exclusive license to NIH, fully consistent with federal policies such as Circular A- 110 and Circular A-102. This policy leaves the author free to transfer some or all of the exclusive rights under copyright to a journal publisher or to assign these anywhere they so choose. Attached please find an issue brief detailing how the NIH Public Access Policy does not affect copyright law [see the letter for the brief].

The NIH Public Access Policy advances science, improves access by the public to federally funded research, provides for effective archiving strategies for these resources, and ensures accountability of our federal investment. Given the proven success of the revised NIH Public Access Policy and the promise of public access to federally funded research, we firmly oppose H.R.801 and ask that you do the same. Thank you for considering the stake and position of the key constituencies in this discussion.

Read more about it at "Conyers Introduces H.R. 801, "The Fair Copyright in Research Works Act."

Urgent Call to Action: Conyers Bill Opposing NIH Open Access Policy May Soon Come to House Vote

There are strong indications that Rep. John Conyers, Jr. will try to get a House vote on the Fair Copyright in Research Works Act (H.R. 801) much more quickly than previously thought. If you want to oppose the bill and support the NIH Public Access policy, you should contact members of the House Judiciary Committee and your Representative immediately by e-mail, fax, phone, or letter. This is especially important if a Judiciary Committee member is in your district.

Here's an excerpt from the Alliance for Taxpayer Access call to action to defeat the Conyers bill:

All supporters of public access—researchers, libraries, campus administrators, patient advocates, publishers, and others—are asked to please contact your Representative . . . to express your support for public access to taxpayer-funded research and ask that he or she oppose H.R.801. Draft letter text is included below. . . .

H.R. 801 is designed to amend current copyright law and create a new category of copyrighted works (Section 201, Title 17). In effect, it would:

  1. Prohibit all U.S. federal agencies from conditioning funding agreements to require that works resulting from federal support be made publicly available if those works are either: a) funded in part by sources other than a U.S. agency, or b) the result of "meaningful added value" to the work from an entity that is not party to the agreement.
  2. Prohibit U.S. agencies from obtaining a license to publicly distribute, perform, or display such work by, for example, placing it on the Internet.
  3. Stifle access to a broad range of federally funded works, overturning the crucially important NIH Public Access Policy and preventing other agencies from implementing similar policies.
  4. Because it is so broadly framed, the proposed bill would require an overhaul of the well-established procurement rules in effect for all federal agencies, and could disrupt day-to-day procurement practices across the federal government.
  5. Repeal the longstanding "federal purpose" doctrine, under which all federal agencies that fund the creation of a copyrighted work reserve the "royalty-free, nonexclusive right to reproduce, publish, or otherwise use the work" for any federal purpose. This will severely limit the ability of U.S. federal agencies to use works that they have funded to support and fulfill agency missions and to communicate with and educate the public.

Because of the NIH Public Access Policy, millions of Americans now have access to vital health care information through the PubMed Central database. Under the current policy, nearly 3,000 new biomedical manuscripts are deposited for public accessibility each month. H.R.801 would prohibit the deposit of these manuscripts, seriously impeding the ability of researchers, physicians, health care professionals, and families to access and use this critical health-related information in a timely manner.

All supporters of public access—researchers, libraries, campus administrators, patient advocates, publishers, and others—are asked to contact their Representatives to let them know you support public access to federally funded research and oppose H.R. 801. Again, the proposed legislation would effectively reverse the NIH Public Access Policy, as well as make it impossible for other federal agencies to put similar policies into place. . . .

Draft letter text:

Dear Representative;

On behalf of [your organization], I strongly urge you to oppose H.R. 801, “the Fair Copyright in Research Works Act,” introduced to the House Judiciary Committee on February 3, 2009. This bill would amend the U.S. Copyright Code, prohibiting federal agencies from requiring as a condition of funding agreements public access to the products of the research they fund. This will significantly inhibit our ability to advance scientific discovery and to stimulate innovation in all scientific disciplines.

Most critically, H.R. 801 would reverse the National Institutes of Health (NIH) Public Access Policy, prohibit American taxpayers from accessing the results of the crucial biomedical research funded by their taxpayer dollars, and stifle critical advancements in life-saving research and scientific discovery.

Because of the NIH Public Access Policy, millions of Americans now have access to vital health care information from the NIH’s PubMed Central database. Under the current policy, nearly 3,000 new biomedical manuscripts are deposited for public accessibility each month. H.R.801 would prohibit the deposit of these manuscripts, seriously impeding the ability of researchers, physicians, health care professionals, and families to access and use this critical health-related information in a timely manner.

H.R. 801 affects not only the results of biomedical research produced by the NIH, but also scientific research coming from all other federal agencies. Access to critical information on energy, the environment, climate change, and hundreds of other areas that directly impact the lives and well being of the public would be unfairly limited by this proposed legislation.

[Why you support taxpayer access and the NIH policy].

The NIH and other agencies must be allowed to ensure timely, public access to the results of research funded with taxpayer dollars. Please oppose H.R.801.