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Shoring Up Copyright

Bill reinforces publishers' rights, forces change to NIH's open-access policy

by Susan R. Morrissey
September 29, 2008 | A version of this story appeared in Volume 86, Issue 39

A BILL INTRODUCED in Congress on Sept. 10 would essentially force the National Institutes of Health to revert its mandatory public-access policy to a voluntary one to avoid violating copyright law.

In May 2005, NIH put in place a voluntary public-access policy aimed at giving the public free access to the results of taxpayer-funded research. But because few NIH-funded researchers complied with the policy, Congress stepped in and added language to the agency's 2008 appropriations bill directing NIH to make the policy mandatory. In April, NIH's public-access policy became a requirement for all its grantees.

As the dust settles from this change, the legality of this mandatory program is being questioned by members of Congress who were not part of the appropriation directive and by scholarly publishers, including the American Chemical Society, which publishes C&EN. Specifically at issue is whether NIH followed the congressional directive to put in place a mandatory policy that is consistent with copyright law.

This question about copyright has led to the introduction of a bill (H.R. 6845) to protect intellectual property. It also led to a hearing by the House Judiciary Subcommittee on Courts, the Internet & Intellectual Property, which was held earlier this month.

"Copyright protections provide the incentive to ensure that publishers invest in the peer review process, thus ensuring that science is adequately vetted prior to being distributed to the public," said House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) at the hearing. "I am introducing the Fair Copyright in Research Works Act of 2008, legislation that will preserve the intellectual property rights of our nation's researchers," he added.

Conyers spearheaded the bipartisan legislation that would create the classification of "extrinsic work," which is work done with federal funding and funding from other sources. Work that has benefited from significant value added from nongovernment sources—such as articles that have been peer reviewed by private entities—would also fall into this category. Because extrinsic work involves contributions from groups that were not party to the federal research contract, the work would not fall under NIH's mandatory public-access policy, which requires that final, peer-reviewed manuscripts of grantee work be posted on the agency's PubMed Central electronic database 12 months after publication.

"Copyright protections provide the incentive to ensure that publishers invest in the peer review process."

The explicit definition of extrinsic work to include the value-added work done by publishers will help protect the publishing infrastructure, bill advocates explain. "While the agencies pay for the research, the publisher bears the cost of peer review and publishing," Martin Frank explained at the hearing. Frank is the executive director of the American Physiological Society (APS), which publishes 14 scientific journals. "Articles should not be taken from those of us who have invested heavily in their creation," he said.

Frank told the committee that the "peer review is free" argument is disingenuous. He noted that although scientists are not paid to serve as peer reviewers, the cost associated with managing the process is significant. In fact, he noted that APS spends about $13 million per year to publish 14 journals, which contain approximately 40,000 articles. That cost is recouped through the protection copyright law provides, which allows publishers to charge for their product.

Copyright expert Ralph Oman, a professor of intellectual property law at George Washington University Law School, also testified at the hearing against the NIH mandatory policy. He questioned whether the full impact of the policy would benefit the public in the long run.

"The NIH proposal is short-sighted, counterproductive, damaging to U.S. creativity, and contrary to the NIH's own interest in encouraging broad public dissemination of peer-reviewed learned articles," Oman stated. He cautioned that the policy's undercutting of copyright protection will threaten the entire publishing enterprise. "If the NIH provision is fully implemented, it will almost certainly end this self-policing and self-financing system and get the federal government deeply into the science-, technology-, and health-publishing business," he said.

NIH DIRECTOR Elias A. Zerhouni, however, maintains that the NIH policy is consistent with copyright law and adamantly denies that the policy will cause the demise of the private scholarly publishing enterprise. At the hearing and in interviews with C&EN, he pointed out that more than 380 journals are already posting articles in PubMed Central and that there is no evidence that this policy is damaging publishing.

Zerhouni noted that before moving to a mandatory policy, fewer than 15% of eligible papers were being submitted to PubMed Central. Since April, however, that rate has already jumped to almost 60%, he said.

But for Zerhouni, who just announced he's stepping down from his NIH post (see page 8), the policy is not just about posting articles, it's about taking advantage of information technology to exploit the large volumes of data that grantees are generating. He explained that it's part of NIH's role to interconnect all electronic sources of information, and in fact, the agency's databases are already doing this.

"When viewing a report in NIH PubMed and PubMed Central databases, at the touch of a button, we can link to papers that are determined to be related, as well as to papers that were actually cited," Zerhouni explained. "We can also link to related chemical structures, proteins, viruses, and other data, allowing us to make discoveries that advance science and even prevent deaths," he added.

"We must make sure in the technology world of today that we are not fragmenting the information," Zerhouni told the subcommittee.



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