H.R.801 Threatens Open Access Requirement for Gov't Funded Research

The Alliance for Taxpayer Access called out the introduction of proposed legislation that would prohibit the federal government from requiring publication of federally-funded research under open access terms. This would not only reverse the NIH Public Access Policy but would also stop other federal agencies from following a similar course. This is, in my humble opinion, bad. I continue to think that open access to federally-funded research is an appropriate expectation based on the use of taxpayer money — both individual and corporate money — to fund such research. To the extent that the proposed legislation would prevent this from happening, I oppose it.

The NIH Public Access Policy seems well reasoned. It requires that the "final, peer-reviewed manuscript" — a phrase defined in the policy FAQ — be deposited into PubMed Central. To the extent that the value-added "final published article" — another phrase defined by the policy FAQ — contains creative work by the publisher, that version is covered by copyright under whatever author agreement was signed. The FAQ specifically states that NIH wants the final, peer-reviewed manuscript — the version of the paper before the creative efforts by the publisher are applied.

Text of Legislation

On February 3rd, Representative John Conyers (D-MI) introduced a H.R.801 with the short title of "Fair Copyright in Research Works Act". As common in the legislative process, the bill was referred to a committee — the House Judiciary Committee, in this case, where Rep. Conyers is the chair. The introduced legislation seeks to amend Section 201 of title 17 of the United States Code ("Ownership of copyright") by adding this new section:

Limitations on the Federal Government-

LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement--

impose or cause the imposition of any term or condition that--

requires the transfer or license to or for a Federal agency of--

any right provided under paragraph (3), (4), or (5) of section 106 in an extrinsic work; or

any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

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.

CONSTRUCTION-

CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

DEFINITIONS- In this subsection:

EXTRINSIC WORK- The term `extrinsic work' means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and--

is also funded in substantial part 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; or

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.

FEDERAL AGENCY- The term `Federal agency' means any department, agency, or instrumentality of the United States Government.

FUNDING AGREEMENT- The term `funding agreement' means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.

I'm neither a lawyer nor a legislator, but to me that seems like an incredibly twisted and convoluted text. That makes me immediately wary of it. The crux of the issue would seem to be that the proposed legislation means that a federal agency can no longer compel an author to accept any terms for publication of papers -- including open access terms. That would overrule the NIH Public Access mandate. The analysis published by the Alliance for Taxpayer Access goes into other details.

Jester's Response

I've sent this letter to my representative:

The Honorable Patrick J. Tiberi
3000 Corporate Exchange Dr.
Suite 310
Columbus, Ohio 43231

Subject: Opposition to H.R.801, the Fair Copyright in Research Works Act

Dear Representative Tiberi:

As a constituent in Ohio's 12th district, I urge you to oppose H.R.801, the Fair Copyright in Research Works Act, as introduced to the House Judiciary Committee on February 3, 2009. This bill would amend the U.S. Copyright Code, prohibiting federal agencies from requiring as a condition of funding agreements public access to the products of the research they fund. More specifically, it would overturn the Open Access Policy of research funded by the National Institutes of Health.

Open, public access to federally-funded research is an appropriate expectation for the use of taxpayer money — both individual and corporate money — to fund such research. To the extent that the proposed legislation would prevent this from happening, I urge you to oppose it.

Sincerely,

/Peter E. Murray/

If you feel so moved as well, here are some actions you can take:

Review the statement by the ALA Washington Office
Find the name and contact information for your representative and send a similar letter. (If you do contact your representative, be sure to let the Alliance for Taxpayer Access know.)
Track activities on H.R.801 at OpenCongress.
Read what others have said about the proposed legislation.
Talk up the issue with your friends and colleagues. Feel free to point them to this blog post.

Updates

5-March-2009: In an e-mail sent to Change-Congress.org subscribers, Lawrence Lessig and Michael Eisen point to an analysis of H.R.801 done by MAPLight.org.

The text was modified to update a link from http://www.taxpayeraccess.org/action/HR801-09-0211.html to http://replay.waybackmachine.org/20090212210053/http://www.taxpayeraccess.org//action//HR801-09-0211.html on February 11th, 2011.

The text was modified to remove a link to http://www.taxpayeraccess.org/action/log.html on February 11th, 2011.

The text was modified to update a link from http://uscode.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000201----000-.html to http://www.law.cornell.edu/uscode/text/17/201 on November 13th, 2012.

The text was modified to update a link from http://uscode.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000106----000-.html to http://www.law.cornell.edu/uscode/text/17/106 on November 13th, 2012.

The text was modified to update a link from http://www.wo.ala.org/districtdispatch/?p=1945 to http://www.districtdispatch.org/2009/02/conyers-introduces-hr-801-%E2%80%9Cthe-fair-copyright-in-research-works-act%E2%80%9D/ on August 22nd, 2013.

The text was modified to update a link from http://uscode.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----000-.html to http://www.law.cornell.edu/uscode/text/17/102 on September 26th, 2013.