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Thoughts on the first public comment on anti-Open Access bill; fun quote time with Rep. Berman

Sep 11, 2008 • Karen

Right now I'm listening to the witness testimony in the House Judiciary Committee on the "Fair Copyright in Research Works Act." This bill would reverse last year's open access mandate for works funded by the NIH by amending US Copyright Law to say that government agencies can't ask in the funding contract for a nonexclusive license to works that they fund. It's pretty much ridiculous.

The only reason this has even made it to public comment (I think) is a bunch of representatives feeling slighted because a bill passed Congress without going through their committee (the Subcommittee on Courts, the Internet, and IP--the measure was part of an Appropriations bill, so it went through that committee). The grumbling at the opening of the session about how important their committee is, prestige of the Appropriations committee be damned, rah rah rah, I think bears this out. So the representatives have been receptive to the patently ridiculous argument that the NIH mandate *changed* copyright law and, thus, should have fallen under their purview.

Lots (probably millions) of nonexclusive license copyright agreements are agreed upon every day. Every time you upload a video to YouTube, you're giving YouTube a nonexclusive license to that video--the license allows YouTube to display the video without violating your copyright. Professionals everywhere provide or exercise nonexclusive licenses to works. The less assholish scholarly journals only demand a nonexclusive license to an author's article (more commonly, journals force authors to transfer their copyright entirely to the journal).

The terms of a nonexclusive license are not set in copyright law--they are determined in a contract. Like any contract, the terms vary from license to license, depending on what it's for. My understanding of contract law is that two parties can write a contract requiring virtually any condition of either party (other than illegal activities or selling yourself into slavery or something). If I'm a research funder, I can stipulate in a funding contract that the researcher wear a big red clown nose at any and all conferences when presenting the research I'm offering to fund. The researcher is free to take my money, and accept the conditions attached, or go elsewhere for funds. That's how contracts work.

It has always been a standard part of NIH funding contracts that the federal government gets a nonexclusive license to the work being funded. (What's the point of funding research that you can't even read?) The new condition with the mandate is that the author deposit the research in PubMed so the public (the people ultimately paying for it) can read it, not just NIH employees.

Bottom line: it's a contract. It's not a copyright law! The only way the NIH OA mandate conflicts with copyright law is if you change copyright law, which is what the publishers are trying to do now. After all, if it really conflicted, why haven't the publishers just sued the NIH (as they have also rattled sabres about)?

Maybe because they'd lose.

The overlap is not with copyright law as it is, but copyright law as publishers wish it was: a hypothetical legal regime where if a contractual agreement theoretically threatens a revenue stream created by a copyrighted work--even a contractual agreement made long before the author transferred the rights to the publisher--that contractual agreement retroactively violates the publisher's copyright. It's a case of "if value, then right." The law doesn't work that way. The publisher is "buying" (read: getting for free--or even being paid to take in some cases) the rights *as is* when they take the article from the author. If the author's previous funding agreement with the NIH makes those rights look less valuable to the publisher, then don't "buy" them--just publish research that uses funding sources that don't make this stipulation. But if this is all bullshit, as publishers' record profit margins and the legion of financially-secure journals that put their stuff online for free before the mandate suggest, then there is no conflict *even* in the publisher's la-la land version of copyright law.

Then the only thing publishers are losing is a certain degree of autonomy; they no longer decide whether or when to put their material online. Just satiating publishers' neurotic control needs is not worth the cost to scientific advancement and public access.

The bill is being considered because the committee members have ego problems. It's being advanced because big publishers are control freaks. Why do important policies have to be threatened with the chopping block for the sake of various interest groups' psychological tics?

***

Wow... The NIH witness compared eliminating the NIH mandate for the sake of publishers' whining about theoretically going out of business to banning Google for the sake of artificially propping up Altavista--holding back innovation for the sake of a deprecated special interest. A relevant comparison, I think--lots of commentators compare industry copyright maximalists and other rent-seekers to buggy whip manufacturers all the time. To which Rep. Berman growled, "You're saying that this is like Google, like YouTube, where people can violate copyrights, grumble grumble grumble..." and the NIH guy apologized! I didn't know 'Google' was a dirty word in Congress!

Another Berman quote: "I'm disturbed by going from open access to health and biomedical research to talking about technological progress... The NIH is not Napster."

And now he's embarrassing himself with his misunderstanding of Google.
Berman: "Doesn't Google have it [all the biomedical research out there already]?"
NIH guy: "No, they link to us."

Jeez, it's not like you HAVE to be technologically illiterate when you're old. Plenty of old people get technology--after all, they're the ones who first built this stuff! And, on the other side of the coin, it's not necessarily bad to be technologically illiterate. Lots of people get by without using high technology much (see: one of the two major party presidential candidates); that's fine for them.

The problem is when old techno-illiterate people are US Representatives serving on the Subcommittee of Courts, the Internet, and IP. It's a problem when they are responsible for making intelligent technology and information management laws. But it does make for hilarious Congressional transcripts.