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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, February 13, 2008

Open Access - NIH

I'll have a lot more to say about the NIH mandate in the coming weeks. For now, here are the basics.

As part of the Consolidated Appropriations Act, 2008, Congress directed:

"The Director of the National Institutes of Health shall require 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 of 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."

Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. G, tit. II, Section 218.
NIH's response to this command is here:

This policy requires two big changes in behavior to business-as-usual biomedical publishing. First, universities as NIH grantees can no longer remain indifferent to how their faculty authors manage their copyrights. Beginning in Fiscal Year 2008, it is a term and condition of an NIH grant award that the grantee (the university) will ensure that NIH receives (1) the electronic manuscript and (2) a copyright license to publicly distribute that manuscript no later than 12 months after the date of publication.

These are contractual commitments made by the university to NIH. The issue for the university is that both the manuscript and the copyright start out in the hands of the Prinicpal Investigator or author(s) working under the PI's direction. So universities have to get a process in place quickly for ensuring that the PI's or their authors don't take any action that puts the university in a position in which the university cannot comply with this term and condition of the grant award.

The biggest risk for universities and the PI's themselves is that authors will continue to routinely sign away copyright without reading the publisher's copyright transfer form.

The NIH requirement forces authors to take greater responsibility for their own copyrights. Some universities and some authors are likely to grumble about this. If it's really a problem, perhaps they should ask Congress to declare that federally funded research articles get no copyright at all - which is true for articles written by NIH employees. This was what Congressman Sabo proposed some time ago.

If these authors want the privileges of copyright protection, then they can't be heard to complain when NIH requires them to also accept the duty of managing their copyrights responsibly.


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