Category Archives: oa.conyers

A Tale of Two Bills: The Research Works Act and Federal Research Public Access Act

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“The RWA didn’t explicitly say that it would amend copyright law, but it could could have done so implicitly, or by superseding any parts of current law inconsistent with the new law.  Under the NIH policy, authors give permission for OA when they are still the copyright holders.  Even when they later transfer some rights to publishers, they retain the right to authorize OA.  Hence, OA through NIH is authorized by the relevant rightsholder, in this case by the author.  But RWA Section 2.1 would have required publisher consent for that OA.  It would have required publisher consent even when the holder of the relevant rights under current law had already consented.  A consent which suffices under current copyright law would not suffice under RWA.  Either that would violate US copyright law or amend it pro tanto (that is, amend it to the extent necessary to avoid irreconcilable conflict between the old and new statutes).

This may seem like a technical point of law.  But it’s the most radical aspect of RWA.  Under current law, in the US and around the world, authors are the copyright holders in their work until or unless they decide to transfer rights to someone else, such as a publisher.  Copyright consists of a bundle of rights, and authors may lawfully transfer all, some, or none of those rights, as they see fit.  If they retain the right to authorize OA, then no other permission is needed.  Under RWA, however, publishers would have held a new right, beyond copyright, to overrule the rights exercised by authors under copyright law.

It was an unprecedented power grab by publishers.  Unlike past, lopsided legal reforms to benefit publishers, this one was not limited to enhancing the rights of copyright holders against users and consumers.  This one would have harmed all copyright holders except publishers, and benefited publishers even when they were not copyright holders….”

Re-introduction of the bill to kill the NIH policy

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“The Conyers bill is back (or baaaack).  This is the bill to repeal the OA policy at the NIH and block similar policies at all other federal agencies.  Its sponsors named it the Fair Copyright in Research Works Act, but the bill is to fair copyright what the Patriot Act was to patriotism….”

A bill to overturn the NIH policy

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“In their rhetoric, publishers speak as if they are the copyright holders for these articles, and as if the NIH is blocking their full exercise of these rights or even expropriating them.  But that is uninformed or deceptive.  Because the NIH requires grantees to retain a key right, NIH-funded authors now transfer less than the full bundle of rights to publishers.  Publishers don’t like that, and it may be a problem for them, but it’s not a legal problem.  Despite their pose, publishers are not the copyright holders in these articles, without qualification, even after authors sign copyright transfer agreements.  The NIH method of avoiding infringement means that there are plural rightsholders and divided rights in these articles:  the authors have retained at least one and publishers have the rest.  Publishers don’t acquire the key right which would allow them to deny permission for OA or claim infringement or expropriation.  As for the rights publishers do acquire, the NIH policy does nothing to diminish publisher freedom to hold and exercise them.  

Have publishers forgotten this central feature of the NIH policy?  Have its legal consequences still not sunk in?  I find that theory hard to believe.  It would entail that they haven’t read, haven’t remembered, or haven’t understood the policy on which they have focused so much animus and lawyer time.  And it doesn’t square with their justified reluctance to claim actual infringement.  But if they do understand this aspect of the policy, then we’re only left with another cynical theory:  that publishers deliberately stretch the truth by speaking without qualification as if they were the copyright holders for these articles.  But strong or weak, the theory would explain a lot.  If publishers did receive full copyright from authors, or if they believed they did, or if they had some reason to say they did, then their public rhetoric would make start to make sense.  In that world, it would make sense to say that OA through PMC, against their wishes, would violate, diminish, or nullify one of their rights.  

The snag, of course, is that the rhetoric is false, no matter what explains it.  NIH-funded authors retain the key right and don’t transfer full copyright to publishers.  This is what I meant when I said (in SOAN for February 2008) that “publishers cannot complain that [the NIH policy] infringes a right they possess, only that it would infringe a right they wished they possessed.” …”