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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.

Friday, September 12, 2008

Attacking Public Access Through the Copyright Act

On September 9th, Mr. Conyers introduced H.R. 6845, "The Fair Copyright in Research Works Act", into the House of Representatives. There is nothing fair about this bill at all, and it should be opposed by anyone who cares about public access to publicly funded research.

The immediate aim of the bill is to cut off public access to NIH-funded research articles which currently must be made available within 12 months of the date of publication. Yesterday, a hearing was held on the bill in the House Subcommittee on the Courts, the Internet, and Intellectual Property. Any further action during this session is unlikely.

The bill is an odd duck because it would do far more than simply end public access to NIH-funded research. It would also impliedly amend public procurement law and impliedly repeal portions of the longstanding "rights in data" contracting provisions of the Federal Acquisition Regulation, the DFARS, and portions of the intangible property provisions of OMB Circular A-110.

Traditionally, the Copyright Act has not been used for this purpose. Certain journal publishers have asserted to NIH and to the Committee that the NIH policy is in some vague way inconsistent with the Copyright Act and U.S. international copyright obligations. This assertion lacks any basis in law, and a group of 47 professors at American law schools who teach or write about copyright law sent a letter to the committee making this point.

Here's a quick summary of the bill:

1. The Scope of the Amendment

The bill would apply in cases in which a copyrighted work arises from:

(1) a contract, grant agreement or cooperative agreement with any federal agency that involves "experimental, developmental or research activities";

AND

(2) the creation of the work was funded in substantial part by a non-federal non-party to the agreement

OR

(3) the work "represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party."

[Try decoding this. One can intuit that the publishers assert that the "meaningful added value" they have in mind is coordinating the peer review process. They need this odd hook because all of the copyrightable expression in the article is the grantee's (actually the researcher's) made in response to the comments of the peer reviewers (who do it for free). Even if this bill were to become law, it would be debatable whether the coordination of peer review is sufficiently "meaningful" in light of the value contributed by the authors and referees.]

2. The Effect of the Amendment

For covered works, the following prohibitions apply:

(a) the agency may no longer receive a transfer of rights or a license to distribute copies to the public; publicly perform the work or publicly display the work.

[This would mean that the work could not be put on a web site. If it were an audiovisual work, it could not be supplied to the news media for broadcast. If it were printed material, it could not be handed out or sold. So, for example, anything produced by a public-private partnership for which the agency would need a license to share with the public couldn't be done.]

(b) the government may not receive a license to make copies or to adapt the work, if doing so "involves the availability to the public of that work"

(c) the agency may not impose a term or condition that requires the "absence or abandonment" of any of the rights described in (a) and (b) above

(d) the agency may not require the recipient of federal funds to grant a waiver or to assent to the violation of (a) - (c)

(e) the agency may not "assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work."


[That is, even though the public has paid for the research and the creation of the article, the public may not assert rights in the work in a way that would impair a publisher's ability to fully privatize the research.]

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