Carrollogos

A blog about Law, Technology, and Music

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Location: Washington, DC, United States

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, February 29, 2008

NIH Public Access Policy - University Compliance

The revised NIH Public Access Policy goes into effect on April 7, 2008, and universities, medical research institutions, and other grantees have a compliance issue on their hands. If, after the effective date, NIH-funded investigators continue to sign many journal publisher's copyright agreements for articles reporting NIH-funded research, these institutions will be non-compliant with the new policy and continued funding will be at risk.

To mitigate that risk, I've written a White Paper on behalf of SPARC, Science Commons, and the Association of Research Libraries explaining the nature of the new copyright-related risk that NIH grantees face and identifying six options they have for managing that risk.

The White Paper, Complying with the National Institutes of Health Public Access Policy: Copyright Considerations and Options, is now available for download at http://www.arl.org/sparc/advocacy/nih/copyright.html.

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Wednesday, February 20, 2008

Copyright and OA - Response to Stevan Harnad

Prompted by differences of opinion about the Harvard FAS policy, I want to clarify where Stevan Harnad and I agree and disagree about the relationship between copyright and open access.

I understand Stevan's position to be:

1. Open Access policies should conceptually separate a requirement to deposit an electronic copy of a post-peer-review manuscript in a repository from a requirement that the repository make that copy publicly accessible on the Web.

2. Deposit at the time the manuscript is accepted for publication should be unconditionally required.

3. Public access should be allowed any time the publisher's agreement says it may be.

4. If the publication agreement does not permit posting of the manuscript, a repository may still distribute copies by email whenever requested to do so by a user.

5. The combination of 3 and 4 effectively provide open access.

6. Those who argue that open access should also include an explicit public copyright license giving the public more than the right to read (e.g., the rights to republish or to translate or otherwise adapt the work) are mistaken. Either (a) these rights have already been implicitly granted by the public posting of the work; (b) they are not necessary to effective scholarly communication; or (c) even if they would marginally improve scholalry communication, the costs of negotiating copyright with publishers is not worth this benefit.

My response:

Points 1 and 2 are exactly right. Under U.S. copyright law, it is a fair use for an author to send, and for a repository to make, an archival copy of the post-peer-review manuscript. I think it's also a fair use to make an archival copy of the published version of the article. Copyright law in many other parts of the world also would deem this to be legal.

Deposit mandates are highly desirable. Please note that under the Harvard policy, even if a faculty author feels it necessary to seek a waiver of the copyright license to Harvard, there is no reason that author couldn't and shouldn't deposit a copy of the manuscript in the repository.

With respect to public access, I disagree that faculty authors should simply adapt themselves to the arrangements that publishers offer/demand. Moreover, I have have a different view about what those arrangements permit.

So, on point 3, I agree insofar as authors should use all legal rights they have to make their work freely accessible on the Internet. If a publication agreement gives the author the right to post the work in a repository, the author should do so and the repository should make the work freely accessible.

However, I don't think that the starting point for the analysis should be what the publisher's form says. I think authors have an obligation to consider whether signing the publisher's form is ethical behavior.

Copyright is an author's right granted to the author by the public to achieve a public purpose - the promotion of science and useful arts. (I realize that many have a natural rights view of copyright's purpose. I don't share that view.) With rights come responsibilities. Authors of scholarly journal articles do not need the promise of a royalty to have an incentive to perform research or report the results and their analysis of that research. So although the premise of one-size-fits-all copyrights is that authors need exclusive rights to be stimulated to create, that premise is largely false with respect to much scholarly research.

Journal article authors know that they will not receive a royalty nor will those who provide referee services. Instead, the progress of science and useful arts is driven by these authors' desire to achieve broad dissemination of their research. The Internet opens up a (not so) new avenue of scholarly communication. Thus, journal article authors have a duty to consider whether they are making proper use of the copyrights that the public has given them when they agree to the terms of a publisher's agreement that limit how, when or where the author may provide free access to their work on the Internet.

I have a different understanding about the legal consequences of number 4, and therefore I also do not agree with number 5.

As for number 6, clarifying re-use rights through public licensing is desirable. If his view is (a) or (b) I disagree. If his view is (c), however, I agree that the effort necessary to achieve this goal should be subject to cost-benefit analysis. Under current circumstances, where subscription-funded publishers have shown some willingness to permit free access to post-peer-review manuscripts but have not been willing to agree to public licensing, I think an author could responsibly decide to be satisfied with a copyright agreement that permits free access but does not provide for re-use licensing.

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Harvard policy - Response to Stevan Harnad

Stevan Harnad is a forceful advocate for open access, and I agree with most of what he advocates. I do have a different view than he does about the connection between open access and copyright and his analysis of the Harvard policy calls this to the fore.

My response is essentially the same as Peter Suber's. I'll add that Stevan characterizes the policy as reservation of rights. I think that's mistaken. Under the policy, the author continues to own all of the exclusive rights under copyright and remains free to transfer all of them to a journal publisher.

What the Harvard policy calls for is a non-exclusive license, which is the same thing as permission. All that the FAS have done is agreed that they have granted Harvard permission to post their work in the repository and that Harvard may grant others similar permission so long as copies are not being sold for a profit.

NIH and Harvard - It's About Values

If it hasn't started yet, there's going to be grumbling soon enough when the reality of the NIH and the Harvard Faculty of Arts & Sciences ("FAS") policies set in. These policies require that faculty authors treat that moment when they are about to sign a journal publisher's copyright transfer agreement as an Aretha Franklin moment. The author has to hear the members of the underserved audience who will be denied access if that form is signed. The author has to hear, "You better think (think) think about what you're trying to do to me."

We should expect that under the NIH and FAS policies, some faculty will chafe when they can't just sign the publisher's form and have have to start using a contractual addendum or some other legal notice in response. They'll become even more exasperated if publishers respond by amending the amendments. As masters within their respective domains, faculty are likely to feel some frustration reflecting discomfort with the unfamiliar, and perhaps alienating, legal language in both the publisher's form and the addendum.

The key point is that this really is not a technical conversation. It's a conversation about values. Contractual language is designed to capture a shared understanding among the parties, and the likely back-and-forth about copyright reflects a difference of opinion about the value of public access to scholarly thought and research. The point of the back-and-forth over copyright is to persuade the publisher to accept NIH's and FAS commitment to equitable access to scholarly research or to force the publisher to reveal that it operates under a different set of values.

So while it may be tedious or uncomfortable for a faculty author to have to carefully read the language of any agreement or addendum, that author must do so to effectively express the shared values of the Faculty of Arts & Science in Harvard's case and the American people's in the NIH case.

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Wednesday, February 13, 2008

Open Access - Who's Next?

Among universities in the United States, Harvard has just increased its competitive edge by adopting a faculty resolution to grant the university a license to make faculty scholarship freely accessible online. (Funders and institutions elsewhere in the world are already on a roll, and a recent report from the European University Association recommends self-archiving in 791 European universities.) What are the competitive advantages?

1. There is reason to believe that the impact of, and citations to, Harvard scholarship will increase because it is freely accessible.

2. Harvard researchers will be able to use the rich archive of Harvard scholarship to experiment with for a variety of purposes, including developing new research tools.

3. Harvard librarians will get greater expertise than exists at competing institutions at developing, managing, and adding value to the university's digital library because they will have a regular flow of new scholarship to manage.

4. Young academics should be attracted to the institution as prospective faculty members, graduate students or other kinds of researchers for the signal that this initiative sends. The Faculty of Arts and Sciences, at least, seems to get the Web.

Faculty at competitor institutions should take note. There's an early mover advantage to be had here. Who's next?

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Open Access - Harvard - Author Education

The power of the Harvard policy is that the authors are precommitting themselves to open access (subject to the waiver option), and that means when it comes time to publish an article, they must alert their publishers to the fact of the previously granted license to Harvard.

One way they can do this is to use one of the author's addenda available through the Scholar's Copyright Addendum Engine, which specifically requires publishers to acknowledge previously-granted licenses to a funder or to the author's employing institution.

The risk of not doing is so is that it may be that the author is making a misrepresentation to the publisher by purporting to transfer more rights than s/he can.

But, there's really nothing new here except that the licensee is the university instead of a funding agency. Government-funded researchers have been in this situation for decades. All government funding agencies (not just NIH) are required by OMB regulation to take a non-exclusive copyright license to any works created under a grant or cooperative agreement with a university. The government receives this license at the moment the work is created, just like under the Harvard license.

These government funded authors have been routinely signing copyright forms that appear to conflict with the government's previously-granted license. Legally, there are two options for characterizing what's been happening all these years. (1) These authors have routinely been breaching their contracts or have routinely been guilty of fraudulent inducement to contract by misrepresenting the rights they have; or (2) even though the text of the publisher-drafted copyright form says that the author represents that s/he is transferring all rights under copyright free from any licenses, that explicit text is actually subject to an implied term recognizing the previously-granted license.

Under the second interpretation, the boilerplate in the one-size-fits-all form is not controlling so long as the publisher is aware that the author is a government-funded researcher. The publisher should be aware of the government's license, and so by accepting the article, the publisher impliedly acknowledges that it is taking copyright subject to the government's license.

I prefer interpretation #2, and I think this is how a court would apply the law, but this is just an opinion. So we've been living in a world where authors should have been alerting their publishers to previously-granted licenses for a long time. Perhaps this new attention by faculty to their copyrights will lead them to address this practice as well.

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Open Access - Harvard - Impact on Librarians

One reason why the Harvard Faculty of Arts and Sciences was wise to pre-commit themselves to grant a license to the university in articles they will write in the future is that this license empowers the librarians to seed and to manage the institutional repository in a much more robust way.

The license applies going forward so that at the moment a faculty member finishes the first draft of an article, the university has a license. Any subsequent transfer of copyright to a publisher is subject to this license unless the faculty member requests that the university waive the license with respect to that particular article.

So the librarians at Harvard will no longer have to decipher publisher agreements or the RoMEO/Sherpa list or the OAKlist to know whether an artictle can go up in the IR. Unless the policy has been waived, any article written henceforth by an FAS faculty member can and should go in the IR. (The details of how this will work in practice have to be ironed out, but this motion establishes the legal framework for moving forward.)

[Note, this legal framework (except for the waiver) is exactly how it works with the NIH Federal purpose license (45 CFR 74.36(a)) for any NIH-funded authors.]

Open Access - Preliminary comments on the Harvard Initiative

[Disclosure: I've been a supporter of the Harvard initiative since its inception and have provided informal input to its proponents periodically along the way.]

How big a deal is this initiative by the Harvard Faculty of Arts and Sciences? It's huge.

First, this is a bottom-up initiative. Open access advocates have been working hard over the years to get faculty authors to pay greater attention to their copyrights. While faculties at various institutions have adopted resolutions supporting open access as a principle and as a goal, this is the first time that faculty authors as a group have stepped up and really acknowledged that the Internet matters and that business-as-usual publishing fails to take advantage of the Internet as a means for spreading knowledge throughout the world.

Second, by precommitting themselves in this fashion, the faculty has recognized that copyright is an author's right. With rights come responsibilities. These authors have committed to each other that they will take greater responsibility for managing their copyrights and for providing the public with free access to their work.

There are a number of heroes in this story. Within the administration, Steve Hyman, the provost, set up a faculty committee to study scholarly communication issues and practices. Stuart Shieber (Computer Science) chaired that committee and, along with his committee members, labored for more than a year to make this happen.

It is now up to faculty on other campuses to reflect on whether they too are willing to be responsible authors in the twenty-first century.

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Open Access - Harvard Makes History

On Tuesday, February 12, 2008, the Harvard Faculty of Arts and Sciences came together as scholarly authors and collectively agreed that in the age of the Internet they have a responsibility to manage their copyrights differently than they have been to date.

Specifically they unanimously voted in favor of this motion:

The Faculty of Arts and Sciences of Harvard University is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean's designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

To assist the University in distributing the articles, each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost's Office in an appropriate format (such as PDF) specified by the Provost's Office. The Provost's Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to
the Faculty.

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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: http://publicaccess.nih.gov/.

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.

Big News for Open Access - Harvard and NIH

There are two big developments for Open Access going on right now. In December, Congress directed NIH to make its Public Access Policy mandatory, and NIH has set an effective date of April 7, 2008 for its new mandate.

Yesterday, the Harvard Faculty of Arts & Sciences adopted a historic open access policy by which they agreed to grant Harvard permission to post their scholarly works in the institutional repository and to make their work publicly available through other means.

I'll provide more details on each in separate posts, but we are now living in interesting times as far as the future of scholarly communication goes.

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