Carrollogos

A blog about Law, Technology, and Music

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I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Wednesday, November 14, 2007

Tax Problem for Commercial Publishers?

In arguments about open access, commercial publishers do their utmost to minimize rhetorically the value they receive from free articles and free labor by referees or peer reviewers and some editors.

When the audience changes, these same publishers have suggested to investors in the past that it is precisely because they don't have to pay for these critical inputs and that demand for their publications is relatively inelastic that their business is so profitable.

I wonder what story they tell the taxing authorities about whether these free inputs are part of their gross income? In the United States, "gross income means all income from whatever source derived," 26 U.S.C. s. 61(a). "Any source" would seem to include in kind inputs such as free articles of value and free labor. right?

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There he goes again - Allan Adler on the NIH Policy

Once again, Allan Adler's back with the private market canard. Mr. Adler is vice president for legal and government affairs at the Association of American Publishers, which has organized efforts to quash the Open Access movement. Despite his best efforts, Mr. Adler and his allies failed to persuade Congress that it is good policy to make taxpayers pay twice for research articles that they fund.

Here's the packaged sound bite that he once again unwrapped and delivered to the Washington Post's Rick Weiss: "[T]here are some very serious questions to examine as to whether this is an unwarranted government intrusion into the private-sector publishing industry."

Government intrusion? Hmmm. Let's look at the facts. For this argument to make any sense one would have to ignore copyright law and forget that taxpayers are part of the picture. Mr. Adler has to do this because he's arguing that there's something wrong with a world in which he who pays the piper calls the tune. Because that's all that's going on here.

NIH funds the research and, under the bill language, would require public access to resulting research articles as a condition of funding. Under copyright law, the author starts out with the rights, and the NIH policy deals with the relationship between authors and funders. Mr. Adler's members operate in a market comprised of authors and publishers that depends for its very existence on research funded by other sources. Intrusion indeed.

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NIH Policy - Action needed

First the good news. After years of work, Open Access advocates successfully persuaded both houses of Congress to include a provision in the Labor-HHS appropriations bill that would require NIH to make federally-funded research articles publicly available on the Internet no later than 12 monts after publication.

This victory should not be underestimated because the American Association of Publishers and its allies had pulled out all the stops, making repeated office visits at which they pedaled a broad range of legal and economic arguments that were rightly rejected by members on both sides of the aisle.

Now, the not-so-good news. As was expected, and as Peter Suber reports, for unrelated reasons, President Bush has vetoed the bill.

Passage of the LHHS bill was by close to a veto-proof majority, and it is now time to urge your representatives and senators to vote to override the veto of the LHHS Appropriations measure. Contact details for members of Congress are at: http://www.congressmerge.com/onlinedb/index.htm

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