Copyright – Page 43 – DigitalKoans

Harvard Office for Scholarly Communication and the American Physical Society Agree on Open Access Arrangements

The Harvard Office for Scholarly Communication and the American Physical Society have come to an agreement about how to implement Harvard's open access policies for articles published by Harvard authors.

Here's an excerpt from the press release:

As a result of the new agreement, APS recognizes Harvard's open access license and will not require copyright agreement addenda or waivers, in exchange for Harvard's clarification of its intended use of the license. In general terms, in exercising its license under the open access policies, Harvard will not use a facsimile of the published version without permission of the publisher, will not charge for the display or distribution of those articles, and will provide an online link to the publisher's definitive version of the articles where possible. The agreement does not restrict fair use of the articles in any way.

According to Professor Bertrand I. Halperin, Hollis Professor of Mathematics and Natural Philosophy in the Harvard Physics Department and Chair of the 2008 Publications Oversight Committee of the American Physical Society, "Harvard’s open access legislation was always consistent in spirit with the aims of the APS publication policies, but there were differences in detail that would have required faculty members to request a waiver for every article published in an APS journal. It is a credit both to Harvard and to APS that these differences have been worked out. Since APS journals include, arguably, the most important journals in the field of physics, the fact that faculty will now be able to continue publishing in APS journals without seeking a waiver from Harvard’s policies will strengthen both Harvard and the goal of promoting open access to scholarly publications worldwide."

“Self-Archiving Journal Articles: A Case Study of Faculty Practice and Missed Opportunity”

Denise Troll Covey has published "Self-Archiving Journal Articles: A Case Study of Faculty Practice and Missed Opportunity" in the latest issue of portal: Libraries and the Academy (restricted access journal).

Here's the abstract:

Carnegie Mellon faculty Web pages and publisher policies were examined to understand self-archiving practice. The breadth of adoption and depth of commitment are not directly correlated within the disciplines. Determining when self-archiving has become a habit is difficult. The opportunity to self-archive far exceeds the practice, and much of what is self-archived is not aligned with publisher policy. Policy appears to influence neither the decision to self-archive nor the article version that is self-archived. Because of the potential legal ramifications, faculty must be convinced that copyright law and publisher policy are important and persuaded to act on that conviction.

Covey previously self-archived "Faculty Self-Archiving Practices: A Case Study" in Carnegie Mellon's Research Showcase.

Here's the abstract:

Faculty web pages were examined to learn about self-archiving practice at Carnegie Mellon. More faculty are self-archiving their work and more work is being self-archived than expected. However, the distribution of self-archiving activity across the disciplines is not as expected. More faculty self-archive journal articles than other publications, but more conference papers are self-archived than journal articles. Many faculty who self-archive have self-archived fewer than ten publications. A small number of faculty has self-archived most of the work that is available open access from faculty web pages. Significant differences in faculty behavior within departments cannot be explained by disciplinary culture.

“Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright”

Deven R. Desai of the Thomas Jefferson School of Law has made "Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright" available on SSRN.

Here's an excerpt:

Copyright operates under a hidden, erroneous assumption: heirs matter in copyright. This Article examines the possible historical and theoretical bases for the heirs assumption and finds that neither supports it. In short, the assumption is a myth that harms copyright policy and ignores a less obvious, but quite important, heir: society in general. An examination of the historical debates shows that the idea of providing for heirs through copyright has played a minor role in U.S. copyright history. Instead, heirs have been props to advance an agenda of furthering term extensions, advancing rent-seeking opportunities, and allowing authors to exert power against publishers. In addition, although copyright policy makers point to Europe and the Berne Convention as a key source for the heirs assumption, European debates that serve as the basis for the Berne Convention offer surprising and almost prescient sensitivity to ideas that are found today in the access to knowledge movement. One figure in particular, Victor Hugo, made an impassioned speech arguing that literary property protection must be operate as a way to found the public domain and asserting that when choosing between authors' rights and the public domain, the public domain must win.

“Statutory Damages in Copyright Law: A Remedy in Need of Reform”

Pamela Samuelson and Tara Wheatland, both of the University of California at Berkeley School of Law, have made "Statutory Damages in Copyright Law: A Remedy in Need of Reform" available on SSRN.

Here's an excerpt:

U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.

This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

France’s “Three-Strikes” Copyright Bill Strikes Out

The French National Assembly has rejected a copyright bill aimed at curbing illegal file sharing on the Internet. Violators would have received two warning letters, then be subject to Internet disconnection for up to a year. The fight is not over: a revised bill is anticipated in a few weeks.

Forthcoming: Moral Panics and the Copyright Wars by William Patry

Oxford University Press will publish Moral Panics and the Copyright Wars by William Patry, a noted copyright expert and Senior Copyright Counsel at Google.

Here's an excerpt from the ad:

The way we have come to talk about copyright—metaphoric language demonizing everyone involved—has led to bad business and bad policy decisions. Unless we recognize that the debates over copyright are debates over business models, we will never be able to make the correct business and policy decisions

Reading Rights Coalition Protests Kindle Read Aloud Limits at Authors Guild

The Reading Rights Coalition has staged a protest demonstration at the Authors Guild's headquarters about Amazon giving author's and publishers the ability to restrict the Kindle's read aloud function for their works.

Here's an excerpt from the press release:

When Amazon released the Kindle 2 electronic book reader on February 9, 2009, the company announced that the device would be able to read e-books aloud using text-to-speech technology. Under pressure from the Authors Guild, Amazon has announced that it will give authors and publishers the ability to disable the text-to-speech function on any or all of their e-books available for the Kindle 2.

Dr. Marc Maurer, President of the National Federation of the Blind, said: "The blind and print-disabled have for years utilized text-to-speech technology to read and access information. As technology advances and more books move from hard-copy print to electronic formats, people with print disabilities have for the first time in history the opportunity to enjoy access to books on an equal basis with those who can read print. Authors and publishers who elect to disable text-to-speech for their e-books on the Kindle 2 prevent people who are blind or have other print disabilities from reading these e-books. This is blatant discrimination and we will not tolerate it." . . .

Andrew Imparato, President and Chief Executive Officer for the American Association of People with Disabilities (AAPD), said: "It is outrageous when a technology device shuts out people with all kinds of disabilities. AAPD works to remove barriers to accessibility and usability in technology, and we don’t expect to see people with disabilities singled out by having to pay more for access. New technologies, such as electronic books, should be available to everyone regardless of disability." . . .

The coalition includes: American Association of People with Disabilities, American Council of the Blind, American Foundation for the Blind, Association on Higher Education and Disability, Bazelon Center for Mental Health Law, Burton Blatt Institute, Digital Accessible Information System (DAISY) Consortium, Disability Rights Education and Defense Fund (DREDF), IDEAL Group, Inc., International Center for Disability Resources on the Internet, International Dyslexia Association, International Dyslexia Association––New York Branch, Knowledge Ecology International, Learning Disabilities Association of America, National Center for Learning Disabilities, National Disability Rights Network, National Federation of the Blind, NISH, and the National Spinal Cord Injury Association. In addition to the April 7 New York City protest, the coalition will participate in the Los Angeles Times Festival of Books on April 25-26.

Read more about it at "Disabled Group Protests Removal of Kindle's Text-to-Speech."

Consumer Watchdog Challenges Google Book Search Settlement

Consumer Watchdog has sent a letter to Attorney General Eric Holder that challenges the terms of the Google Book Search Copyright Class Action Settlement.

Here's an excerpt from the press release:

The proposed settlement announced last year creates the nonprofit Book Rights Registry to manage book digital rights issues. Here are the deal’s two most troubling aspects, Consumer Watchdog said:

—A "most favored nation" clause guarantees Google the same terms that any future competitor might be offered. Under the most favored nation clause the registry would be prevented from offering more advantageous terms to, for example, Yahoo! or Microsoft, even if it thought better terms would be necessary to enable either to enter into the digital books business and provide competition to Google. It is inappropriate for the resolution of a class action lawsuit to effectively create an "anti-compete" clause, which precludes smaller competitors from entering a market. Given the dominance of Google over the digital book market, it would no doubt take more advantageous terms to allow another smaller competitor to enter the market.

—The settlement provides a mechanism for Google to deal with "orphan works." Orphan works are works under copyright, but with the rights holders unknown or not found. The danger of using such works is that a rights holder will emerge after the book has been exploited and demand substantial infringement penalties. The proposed settlement protects Google from such potentially damaging exposure, but provides no protection for others. This effectively is a barrier for competitors to enter the digital book business.

The most favored nation provision should be eliminated to remove barriers of entry and the orphan works provision should be extended to cover all who digitize books, Consumer Watchdog said.

France Close to Passing Copyright Bill with “Three-Strikes” Provision to Curb File Sharing

The French National Assembly has approved a key provision of a new copyright law that is aimed at curbing illegal file sharing on the Internet. Violators would receive two warning letters, then be subject to Internet disconnection for up to a year.

New Zealand has recently decided not to enact a "three-strikes" law, and will rewrite it. Recent enactment of a new Swedish law that requires ISPs to reveal the identity of potential violators has resulted in Internet traffic in that country dropping by a third. The EFF has recently debunked reports that some U.S. ISPs, prodded by the RIAA, would disconnect U.S. violators; however, Wired has reported that the MPAA is now in negotiations with ISPs regarding disconnection.

Public Domain Victory in Golan v. Holder

In a victory for public domain advocates, United States District Court Judge for the District of Colorado Lewis T. Babcock has ruled in Golan v. Holder (previously Golan v. Gonzales) that the restoration of copyright to certain foreign works formerly in the U.S public domain that resulted from Section 514 of the Uruguay Round Agreements Act violates the First Amendment.

Here's an excerpt from the ruling:

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs' protected speech. Accordingly—to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain—Section 514 is substantially broader than necessary to achieve the Government's interest.

On the basis of the record before the Court, I conclude no evidence exists showing whether the Government's two additional justifications for implementing Section 514—Section 514 helps protect the copyright interests of United States authors abroad; and Section 514 corrects for historic inequities wrought on foreign authors who lost their United States copyrights through no fault of their own—constitute important Government interests, or whether Section 514 is narrowly tailored to meet those interests.

Read more about it in “Court Rules Part Of Copyright Act Unconstitutional” and “URAA Held Unconstitutional.”

“‘Publishers Did Not Take the Bait’: A Forgotten Precursor to the NIH Public Access Policy”

Jonathan Miller has published "'Publishers Did Not Take the Bait': A Forgotten Precursor to the NIH Public Access Policy" in the latest issue of College & Research Libraries (access is restricted under the journal's embargo policy).

Here's an excerpt:

This article compares the recent National Institutes of Health (NIH) Public Access Policy (2005-07) with the United States Office of Education policy on copyright in funded research (1965-70). The two policies and the differing technological and political contexts of the periods are compared and contrasted. The author concludes that a more nuanced approach to copyright, the digital information environment, and the support of an energized user community auger well for the success of the NIH policy, but that it is still too soon to tell.

CLASM: Copyright Licensing Application with SWORD for Moodle

Richard M. Davis has announced that JISC has funded the CLASM (Copyright Licensing Application with SWORD for Moodle) project. (Moodle is an open source course management system.)

Here's an excerpt from the announcement:

This will be a six-month project with a double-edged purpose: to develop a SWORD plugin for Moodle, so that it can interact, platform independently, with common repository applications like EPrints and DSpace; and to explore and demonstrate the use of that plugin for managing Copyright Licensed materials in Moodle courses.

Peter Brantley on Orphan Works and the Google Book Search Settlement

In "The Orphan Monopoly," Peter Brantley, Executive Director for the Digital Library Federation, examines issues related to orphan works and the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

There is a lot to ponder: This is arguably a massive re-writing of copyright for books without any legislative input; Marybeth Peters (MBP), the U.S. Registrar of Copyrights, observed that the settlement essentially proposes a private agreement for compulsory licensing between a large class of IP holders and world’s largest search engine. The potential scope and policy ramifications are significant. MBP mentioned that there might be treaty implications under international conventions. And despite that, one of the most shocking of her statements was that the Copyright Office has not received a single inquiry from any of the 535 elected representatives of the people of the United States. Not. One.

“Orphan Works Legislation and the Google Settlement”

In "Orphan Works Legislation and the Google Settlement," Paul Courant discusses the possibility of legislation that would extend the treatment of orphan works in the Google Book Search Copyright Class Action Settlement to anyone.

Here's an excerpt:

But there is an obvious solution, one that was endorsed at the Columbia meeting by counsel for the Authors Guild, the AAP, and Google: Congress could pass a law, giving access to the same sort of scheme that Google and the BRR have under the Google Settlement to anyone. And they could pass some other law that makes it possible for people to responsibly use orphaned works, while preserving interests for the missing "parents" should they materialize. Jack Bernard and Susan Kornfield have proposed just such an architecture to "foster" these orphans. Google has also made a proposal that would be a huge improvement.

“Google & Books: An Exchange”

In "Google & Books: An Exchange," Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al. have commented on Robert Darnton's "Google & the Future of Books," and Darnton has replied.

Here's an excerpt:

[Darnton] Monopolies tend to charge monopoly prices. I agree that the parallel between the pricing of digital and periodical materials isn't perfect, but it is instructive. If the readers of a library become so attached to Google's database that they cannot do without it, the library will find it extremely difficult to resist stiff increases in the price for subscribing to it. As happened when the publishers of periodicals forced up their prices, the library may feel compelled to cover the increased cost by buying fewer books. Exorbitant pricing for Google's service could produce the same effect as the skyrocketing of periodical prices: reduced acquisitions of monographs, a further decline in monograph publishing by university presses, and fewer opportunities for young scholars to publish their research and get ahead in their careers.

Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives

The Council on Library and Information Resources has released Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives .

Here's an excerpt:

This report addresses the question of what libraries and archives are legally empowered to do to preserve and make accessible for research their holdings of unpublished pre-1972 sound recordings. The report's author, June M. Besek, is executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School.

Unpublished sound recordings are those created for private use, or even for broadcast, but that have not been distributed to the public in copies with the right holder's consent. Examples include tapes of live musical performances or of interviews conducted as part of field research or news gathering. Such recordings may find their way into library and archive collections through donations or purchase. Some may be the only record of a particular performance or event, and therefore may have considerable cultural and historical significance. The rights for use of unpublished recordings are distinct from those for use of commercial sound recordings, which are made with the authorization of rights holders and are intended for reproduction and sale to the public.

Using examples of specific types of sound recordings, the Besek study (1) describes the different bodies of law that protect pre-1972 sound recordings, (2) explains the difficulty in defining the precise contours of the law, and (3) provides guidance for libraries evaluating their activities with respect to unpublished pre-1972 sound recordings.

"Know Your Copyright from Wrong: A Guide to UK Copyright Law"

Christine Riefa, Brunel Law School, has made "Know Your Copyright from Wrong: A Guide to UK Copyright Law" available on SSRN.

Here's the abstract:

Copyright law in the UK is heavily influenced by European law and international treaties. The rationale for protection is anchored in utilitarian theories, based on the idea that an author should be rewarded for his time, effort, and creativity and that he should also be able to control the work as property. The economic protection granted to the author or copyright owner remains a strong feature of UK copyright law and shapes its contours. Our exploration of UK copyright law starts with the subsistence of Copyright to then move on to consider its duration and how copyright is transferred to third parties. Infringements and defences to infringements as well as the acts permitted by Statute are reviewed before concluding by taking into consideration moral rights, a fairly recent addition to UK copyright law.

Senate Spending Bill Includes NIH Open Access Provision

The Senate spending bill, which has been reported by the Washington Post and others as having passed, includes an NIH open access provision.

Here's an excerpt from "In 2009 Appropriations Bill, NIH Public Access Mandate Would Become Permanent":

In the section funding the NIH, section 217, pertaining to public access, reads:

"The Director of the National Institutes of Health shall require in the current fiscal year and thereafter [emphasis added] that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."

In his "Congress Makes NIH Policy Permanent (but for Conyers Bill) post," Peter Suber points out that because of the Fair Copyright in Research Works Act the NIH Public Access policy is still in danger.

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