The Fair Copyright in Research Works Act is a lot of things, but fair ain’t one of them
Last week there was a hearing on a new bill before the House Judiciary Committee, the “Fair Copyright in Research Works Act.” Think of it as the Clear Skies Act for copyright; an odious piece of corporate welfare wrapped in a friendly layer of doublespeak. The bill, introduced by Michigan Congressman John Conyers, would prohibit policies like the NIH Public Access Policy by making it illegal for government funding agreements to require any sort of copyright transfer or license from the grantee. It would make it illegal for U.S. government agencies to seek any rights at all in the research that they fund. This is anything but fair. Indeed, it is manifestly unfair to the taxpayers who ultimately pay for the research, and on whose behalf the research is conducted.
Publishers have pushed for this bill because they fear that open access mandates will reduce their profits. If people can access the research for free online, who will pay millions of dollars for subscriptions? Lots of people, actually, but that’s another post.
Instead of baldly admitting that what they seek is protection for their dying business model, publishers argue that the NIH Public Access policy violates their copyrights. The assertion is hogwash. Copyrights belong to authors before they belong to publishers. Authors can license their work however they please; the fact that they have traditionally signed over all of their rights to publishers without compensation does not mean they should continue doing so. Indeed, the case can be made that those who pay the authors — including public entities such as NIH and NSF that support research — could require assignment of some or all rights as a condition of receiving the grant in the first place. I wouldn’t favor such a policy, but it’s fatuous to suggest that Congress should limit the scope of contracts between grantors and grantees.
Allan Adler, VP of the Association of American Publishers, issued a statement in which he had the gall to say that “Government does not fund peer-reviewed journal articles—publishers do.”
That’s just not true. The NIH spends over $28 billion in taxpayer money annually to fund research. Researchers write articles about their findings, and their peers review those articles, without compensation from publishers. Without the research, there would be nothing to publish. Largely due to historical accident, publishers manage the peer review process, helping journal editors to badger referees into reviewing articles, generally for no pay. The value of the scientific expertise that goes into refereeing dwarfs that of the office expenses incurred by publishers in managing the process. The referees’ salaries are paid by universities and research institutes, not by publishers. Basically, we have a system in which the public pays for the research, the universities pay for the refereeing, the publishers pay for office work to coordinate the refereeing, and also for some useful editing. Then the publishers turn around and sell the results back to the universities and to the public who bore almost all of the costs in the first place.
The people of the United States pay good money to learn about the world. It would be a travesty if Congress decided that the interests of a few publishers were more important than the research investments of the American public, and that’s exactly what this bill would do.
the gall of these publishers is astounding…
they actually believe they _own_ the content
that we were merely paying them to manage.
as if they had created it all, out of thin air…
it’s time to declare eminent domain on them.
-bowerbird
September 17, 2008 @ 3:44 pm
Wow. Adler’s comment is quite possibly one of the most myopic I’ve seen from commercial publishers, and that’s saying a lot.
September 17, 2008 @ 3:59 pm
I agree with Buzzy’s comment on Adler’s quote, but it should be noted that those statements were not made as a part of the hearing testimony, but in a statement after the introduction of the legislation. There was some talk at the hearing that the NIH policy is one of the most liberal for publishers, because it grants a full 12-month embargo period (many others are shorter) before articles must be deposited in PMC. Paul, how much weight do you feel we can put into these economic arguments, specifically research that shows publishers financial interest in the work dries up after about a year?
September 17, 2008 @ 6:00 pm
Thanks, Timothy. I’ve corrected the link to Adler’s statement.
I think that the financial interest for publishers in regarding the NIH mandate is probably small — the mandate is actually quite weak, both with regard to the time period and because the final, published version is not required to be posted on PMC. That said, I expect that this is seen as the camel’s nose under the tent.
September 18, 2008 @ 1:48 pm
If STM publishers do business under a “dying business model” who are the “lots of people” who will pay for subscriptions?
September 22, 2008 @ 4:44 pm
But surely publishers add something really valuable to academic work? They have consistently invested in the journals in which the research is published, and they pay for things like hosting platforms and technology. Much of the technology that makes OA a technical possibility (if not a realistic one) was developed by these odious publishers!
Offering information for sale is not the same thing as claiming ownership. They are not locking away or hoarding our reseach!
Jimbo
October 23, 2008 @ 11:10 am
[...] I was disappointed to learn yesterday that Congressman John Conyers (D-MI) reintroduced the “Fair Copyright in Research Works” Act despite the fact that it is neither fair nor supportive of research. As Paul Courant put it in his blog post about it the first time around, “the Fair Copyright in Research Works Act is a lot of things, but fair ain’t one of them.… [...]
February 5, 2009 @ 6:05 pm
Thank you Paul for furthering the democratization of publicly funded information. On another note this guy Adler appears to be quite a whore given that his prior gig was with the ACLU defending the freedom of information act. I guess restricting information pays better. http://www.cptech.org/events/learningtools04052004/bio/aa.html
February 9, 2009 @ 4:18 pm
[...] Access has a great summary on their site. I said in my previous post that Paul Courant’s blog entry on this topic is a good read, and it [...]
February 12, 2009 @ 8:28 pm
[...] reply was severely trashed by Michael Eisen, Peter Subers, and Lawrence Lessig. Blog posts by Paul Courant, Molly Kleinman, and numerous others. Clearly, the bill hasn’t gone down well with a lot of [...]
March 17, 2009 @ 11:39 am
“They are not locking away or hoarding our reseach!”
Yes, they are. They even lock up public domain works from a century ago.
April 16, 2010 @ 11:38 am
[...] PubMed Central within 12 months of publication. As Paul Courant, a University of Michigan Librarian wrote of a 2008 iteration of a bill, a AAP’s explain that a “Government does not account peer-reviewed biography articles [...]
January 5, 2012 @ 8:06 pm
[...] Central within 12 months of publication. As Paul Courant, the University of Michigan Librarian wrote of the 2008 iteration of the bill, the AAP’s claim that the “Government does not fund peer-reviewed journal articles [...]
January 16, 2012 @ 9:19 pm
[...] Paul Courant on the Fair Copyright in Research Works Act Kevin Smith on “Breaking Technology” [...]
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