NIH public access and copyright October 31, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farLast Tuesday the Senate passed a FY 2008 appropriations bill that included language making it mandatory for investigators funded by the National Institute of Health to place the published versions of their results in the open access PubMed Central database within one year of publication. There is a new release about the policy, which was passed by the House in July, here from the Alliance for Taxpayer Access.
A consultant for publishing groups recently posted several questions about how the policy relates to authors’ copyrights on a library listserv, intended to convince academic authors that the policy is some kind of threat to them. By responding to those questions below, I hope to clarify the real relation between this new mandate and author’s rights.
The first question was whether supporters of the NIH mandate believe authors should own their copyrights, including the right to charge for their work. In my opinion, an author should have ownership rights in their own work. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language of the provision passed last week requires that the mandate be implemented in a way consistent with an author’s ownership of copyright.
All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author’s ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author’s reputation, which is the real value academic authors are able to extract from their copyright ownership.
The second question was whether supporters of NIH deposit believe that authors should have the right to transfer their rights by contract. Again, I support that right very strongly; I spend a good deal of my time advising academic authors about how to accomplish these transfers in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer’s ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.
One must remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.
Finally, supporters were challenged about whether they believe academic work is “work for hire” that is owned by their employing universities, and whether they also felt other faculty work,like inventions, should belong to the school. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors’ hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.
When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.
As for other types of intellectual property, I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions because they recognize that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.
Responding to these challenges helped me clarify for myself that the real threat to authors’ copyrights is not the NIH public access policy, but an outdated approach to publishing that tries to build an exclusive market around a non-competitive good (which means a good that can be distributed widely without diminishing its supply or value to the creator).
Talk back on schol comm issues October 28, 2007
Posted by Kevin Smith in : Scholarly Publishing, Technologies , add a commentTwo interesting scholars have recently undertaken to write major pieces of scholarship about scholarly communications issues in blog form. This means that all of us have the opportunity to comment on these works in progress, a rare opportunity to participate in cutting edge research and to make our voices heard before a work of scholarship is published. Not only are these two projects interesting because of their topics, they also represent important experiments in the kind of collaborative scholarship that the digital environment makes possible.
Georgia Harper, well-known in copyright circles for her years of work in the Counsel’s Office at the University of Texas and her educational outreach to the whole academic community, is now a Ph.D. student in Library and Information Science. She is working on a major paper on the impact of mass digitization projects on copyright law and policy. Her work should be fascinating, and we are invited to participate as she develops the paper and solicits feedback at this blog site using CommentPress software and in collaboration with the Institute for the Future of the Book.
The growing influence of the Institute for the Future of the Book in these new experiments in collaborative scholarship is evident from the fact that the other project, Siva Vaidhyanathan’s growing book on “The Googlization of Everything,” is also a project of if:book. Vaidhyanathan’s project promises to be the more synoptic and polemic of the two as he tells us why we should worry that “one company is disrupting culture, commerce and community.” Combined with Georgia’s deep knowledge and experience in law and policy, these two projects offer a rich set of opportunities to imagine the future of publishing and scholarship.
When is something a work for hire? (weekly widget) October 25, 2007
Posted by Kevin Smith in : Copyright Information Notes , add a commentA work is “made for hire,” so that the employer owns the copyright from the beginning, if the work was created “by an employee within the scope of his or her employment” or if a work by an independent contractor is subject to an express agreement that it will be work for hire and it falls into one of nine broad categories listed in the Copyright Act. Many works created by college and university faculty would seem to be works for hire under the first prong of this definition, but there is a long judicial tradition of excluding these works from the category. Many universities have adopted policies to address when a faculty work is or is not a work made for hire.
Flipping out October 22, 2007
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , add a commentCan it really be this easy? I have written several times about the difficulty of transitions from the increasingly unworkable subscription model for academic journal access to an open access model with some alternative form of financing. Now Peter Suber has developed an idea suggested in 2003 by Mark Rowse, who was CEO of Ingenta at the time, which offers an elegant mechanism for that transition.
Rowse’s suggestion is simply that a journal “flip” its business model by declaring that, from now on, what have previously been regarded as library subscription fees will now be considered authors’ subsidies and the contents of the journal will be available without barriers on the web. Such a decision would protect the journal’s income in the short run, and it would challenge subscribing libraries to refrain from canceling there payments to the journal, now identified as author’s fees, until a sustainable model to keep the contents available in open access is developed. Such a model would presumably involve incremental steps towards correlating what an institution actually pays with the publishing habits of its faculty in the journal. Some schools would pay less, some would pay more, and some that did not pay the high subscription rate at all would be convinced, one hopes, to pay appropriate fees for publishing their own faculty’s work.
This idea obviously involves a risk on the part of both the publisher and the libraries, but it seems like an excellent way to prod libraries into putting their money where their mouths are in regard to open access. As Rowse says, this technique suggests a way to transition to open access “without fundamentally destroying the existing scholarly publishing business.”
Just for some context, this article about the decision of the Max Plank Society to cancel all of its electronic access to the 1,200 scientific publications from Springer Publishing due to the failure of negotiations for an acceptable price is another reminder that the current model is failing at the fundamental goal of facilitating scholarly communications. The kind of imagination and courage that could make Rowse’s suggestion work is sorely needed.
Who gets copyright in a work? (weekly widget) October 18, 2007
Posted by Kevin Smith in : Copyright Information Notes , 1 comment so farCopyright is automatic whenever a work of original authorship is fixed. No notice (like the symbol ©) or registration is required anymore. The copyright is owned immediately by the person who created the work, who retains ownership unless and until they transfer some or all of the copyright to another. The exception is a work made for hire, where the employer rather than the creator is the immediate owner of the copyright.
