Letter from 46 law professors to the House Judiciary Committee

["Stevan Harnad" <amsciforum@gmail.com>]

A brilliant defense of the NIH Green OA Self-Archiving Policy 
against the absurd charges of the publisher's lobby and its 
attorneys in the Conyers Bill.

I generally avoid the legal aspects of OA because I can see so 
clearly that 100% Green OA can be quickly and easily achieved 
without having to waste a single minute on legal obstacles (via 
the IDOA Mandate). But this is such an articulate and rigorous 
set of legal arguments that I could not resist posting them 
further just for the delight of the ineluctable logic alone.

Read, enjoy, admire, and rest assured that whether via the 
legalistic route or just good, practical sense, OA will prevail. 
It is optimal, inevitable, and irresistible. The anti-OA lobby is 
wasting its money in trying to invoke law or laws to stop it; at 
best, they can just buy a bit more time. (But if universities and 
funders opt directly for IDOA mandates, that will deny the 
anti-OA lobby even that.)

Stevan Harnad

PS Unless I am mistaken, one detects the unseen legal hand and 
mind of Peter Suber, plus a goodly dose of the seen hand and mind 
of Michael Carroll in the drafting of this masterpiece.

---------- Forwarded message ----------

September 8, 2008

The Honorable John Conyers, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, D.C., 20515

Re:  NIH Public Access Policy

Dear Chairman Conyers:

The undersigned professors at law schools throughout the United 
States teach copyright law or engage in scholarly research about 
copyright law.  We write to respond to serious misstatements 
relating to copyright law contained in a recent submission to the 
National Institutes of Health with respect to the relationship 
between the NIH Final Policy on Public Access and certain aspects 
of U.S. and international copyright law.  The letter (hereafter 
"the Proskauer Letter") was written by Jon A. Baumgarten of 
Proskauer Rose LLP, dated May 30, 2008, to Allan Adler, Vice 
President for Legal & Government Affairs, American Association of 
Publishers in response to Mr. Adler's request and with the 
understanding that the letter would be part of a public 
submission to NIH by the AAP.

As you know, the NIH Policy requires grantees to ensure that all 
investigators funded by NIH submit an electronic version of their 
final peer-reviewed manuscripts to the National Library of 
Medicine's PubMed Central (PMC), which then makes the manuscript 
publicly available within twelve months of the official date of 
publication. The NIH adopted this policy as required by a 
provision included in the Labor, Health and Human Services, 
Education, and Related Agencies FY 2008 Appropriations Bill.

The Proskauer Letter alleges that the NIH Policy may constitute 
an involuntary transfer of copyright in violation of Section 
201(e) of the Copyright Act.  Contrary to the Proskauer Letter's 
assertions, the Policy does not create an involuntary transfer, a 
compulsory license, or a taking of the publishers' or 
investigators' copyright.  Rather, under the Policy, NIH 
conditions its grant of funding on the grantee's agreement to 
ensure that investigators provide PMC with a copy of articles 
reporting NIH-funded research along with a non-exclusive 
copyright license to make the article publicly available within 
one year after the article's publication in a journal.

In other words, if the investigator chooses not to receive NIH 
funding, the investigator has no obligation to provide the 
article to PMC or a copyright license to NIH.  But if the 
investigator elects to receive NIH funding, he or she accepts the 
terms of the grant agreement, which include the requirement to 
deposit the article with PMC so that the article can be made 
publicly accessible within one year after publication.  Because 
the investigator has this basic choice, the policy does not 
constitute an involuntary transfer.

Furthermore, because the author makes this choice long before the 
publisher enters into the picture, the policy does not take any 
intellectual property away from the publisher.  When the 
investigator transfers copyright to the publisher, as most 
publishers require as a condition of publication, the copyright 
is already subject to the non-exclusive license granted by the 
investigator to NIH.  Thus, the policy does not change the scope 
of the publisher's copyright after the publisher has acquired it.

Additionally, it is important to note that the Policy requires 
deposit of the author's final manuscript after peer review, not 
the final published version of the article.  This aspect of the 
Policy renders moot any debate about whether the publisher 
obtains a copyright interest in the article through the process 
of copy editing or layout.

The publisher performs its copy editing after the investigator 
submits the manuscript to PMC.  While the publisher plays a role 
in coordinating peer review, this process does not result in any 
copyrightable expression attributable to the publisher.  Any 
edits or additional text written in response to peer reviewers' 
comments is written by the investigator, not the publisher.

Building on the erroneous premise that the Policy is an 
involuntary transfer of copyright or a compulsory license, the 
Proskauer Letter then suggests that the NIH Policy might violate 
U.S. obligations under the Article 9 of the Berne Convention or 
Article 13 of the TRIPS agreement.  This argument lacks any basis 
in law.  As discussed above, the NIH Policy governs the terms of 
contracts, not exceptions to copyright law.  As such, the Policy 
in no way implicates Article 13 of TRIPS or Article 9 of the 
Berne Convention, which address permissible copyright exceptions. 
These treaty provisions are completely silent on the issue of the 
terms a licensee can require of a copyright owner in exchange for 
valuable consideration.

The federal government provides funding to state and local 
government agencies and private entities for a wide range of 
activities, including homeland security, law enforcement, 
agriculture, transportation, education, and research.  Congress 
frequently imposes conditions on recipients of this federal 
funding. While one might question the wisdom of a particular 
condition, Congress without doubt has the authority to impose 
them.  Similarly, Congress has the authority to require NIH 
grantees to deposit their manuscripts with PMC and to grant a 
license to make these publicly accessible over the Internet 
within a year of publication.  Such a requirement conflicts 
neither with the Copyright Act nor with international treaty 
obligations.

Respectfully,

Keith Aoki, Professor of Law
University of California Davis School of Laaw
Davis, CA 95616

Ann Bartow, Professor of Law
University of South Carolina School of Law
Columbia, SC 29208

Dan L. Burk, Chancellor's Professor of Law
University of California, Irvine
Irvine, CA  92697-8000
949-824-9325
dburk@uci.edu

Adam Candeub, Acting Director, IP & Communications Law Program
Michigan State University, College of Law
East Lansing, MI 48824-1300

Michael W. Carroll, Visiting Professor of Law
Washington College of Law, American University
Washington, DC 20016

Anupam Chander, Visiting Professor of Law
University of Chicago Law School
Chicago, IL 60637
anupam.chander@yale.edu

Andrew Chin, Associate Professor of Law
University of North Carolina School of Law
Chapel Hill, NC 27599
chinformation@gmail.com

Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice
Seattle University School of Law
Seattle, WA 98122-1090

Robert Denicola, Margaret Larson Professor of Intellectual Property
University of Nebraska-Lincoln College of Law
Lincoln, NE 68583-0902

William Fisher, Wilmer Hale Professor of Intellectual Property Law
Harvard Law School
Cambridge, Massachusetts  02138
tfisher@law.harvard.edu

Brett M. Frischmann, Visiting Professor of Law
Cornell Law School
Ithaca, NY 14853-4901
(607) 255-3814
bfrischmann@gmail.com

Lolly Gasaway, Associate Dean For Academic Affairs & Professor
School of Law, University of North Carolina - Chapel Hill
Chapel Hill, NC 27599
919-962-8501
laura_gasaway@unc.edu

Deborah R. Gerhardt, Director of Intellectual Property Initiative
University of North Carolina School of Law
Chapel Hill, NC 27599

Llewellyn Joseph Gibbons, Associate Professor of Law
University of Toledo College of Law
Toledo, Ohio 43606-3390

James Grimmelman, Associate Professor of Law
New York Law School
New York, NY 10013

Dan Hunter, Visiting Professor of Law
New York Law School
New York, NY 10013
dhunter@nyls.edu

Peter Jaszi, Professor of Law
Washington College of Law, American University
Washington, DC 20016

E. Judson Jennings, Professor of Law
Seton Hall University Law Center
Newark, New Jersey 07102-5210
Jenninju@shu.edu

Dennis Karjala, Jack E. Brown Professor of Law
Arizona State University Sandra Day O'Connor College of Law
Tempe, Arizona 85287-7906
(480) 965-4010
DENNIS.KARJALA@asu.edu

Jay P. Kesan, Professor of Law & Mildred Van Voorhis Jones Faculty Scholar
University of Illinois at Urbana-Champaign
Champaign, IL 61820

Raymond Ku, Professor of Law
Case Western Reserve University School of Law
Cleveland, Ohio 44106
216-368-3963
raymond.ku@case.edu

David S. Levine, Assistant Professor of Law
Charlotte School of Law
Charlotte, NC 28208

Doug Lichtman, Professor of Law
University of California, Los Angeles
Los Angeles, California 90095-1476
Lichtman@law.ucla.edu

Jessica Litman, Professor of Law
University of Michigan Law School
Ann Arbor, Michigan 48109-1215

Lydia Pallas Loren, Professor of Law
Lewis & Clark Law School
Portland, Oregon 97219
loren@lclark.edu

Michael J. Madison, Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA 15260
madison@pitt.edu

Mark P. McKenna, Associate Professor of Law
Notre Dame Law School
Notre Dame, IN  46556
(574) 631-9258
markmckenna@nd.edu

Michael J. Meurer, Professor of Law and Michaels Faculty Scholar
Boston University School of Law
Boston, MA 02215
meurer@bu.edu

Joseph Scott Miller, Visiting Associate Professor of Law
University of Georgia School of Law
Athens, GA 30602

Neil Netanel, Professor of Law
UCLA School of Law
Los Angeles, CA 90095
310-825-1634
netanel@law.ucla.edu

Tyler Ochoa, Professor of Law
Santa Clara University School of Law
Santa Clara, California 95053
TTOchoa@scu.edu

Ruth Okediji, Professor of Law
University of Minnesota School of Law
Minneapolis, MN 55455

Frank Pasquale, Loftus Professor of Law
Seton Hall University School of Law
Newark, New Jersey 07102-5210

Malla Pollack, Professor of Law
Barkley School of Law
Paducah, Kentucky 42001

David G. Post, I. Herman Stern Professor of Law
Beasley School of Law, Temple University
Philadelphia, PA 19122

R. Anthony Reese, Arnold, White & Durkee Centennial Professor
School of Law, The University of Texas at Austin
Austin, TX 78705

Michael Risch, Associate Professor of Law
West Virginia University College of Law
Morgantown, WV 26506-6130
(304) 293-6838
Michael.Risch@mail.wvu.edu

Matthew Sag, Assistant Professor of Law
DePaul University College of Law
Chicago, IL 60604

Pamela Samuelson, Richard M. Sherman Distinguished Professor
University of California, Berkeley
Berkeley, CA 94720-4600
(510) 642-6775
pam@ischool.berkeley.edu

Joshua D. Sarnoff, Practitioner in Residence
Washington College of Law, American University
Washington, DC 20016

Wendy Seltzer, Visiting Practitioner-in-Residence
Washington College of Law, American University
Washington, DC 20016
wendy@seltzer.com

Katherine J. Strandburg, Professor of Law
DePaul University College of Law
Chicago, IL 60604

Madhavi Sunder, Professor of Law
UC Davis Law School
Davis, CA 95616-5201
530.752.2896
msunder@ucdavis.edu

Hannibal Travis, Visiting Assistant Professor of Law
Villanova University School of Law
Villanova, PA 19085

Rebecca Tushnet, Professor of Law
Georgetown University Law Center
Washington, DC 20001
rlt26@law.georgetown.edu

Deborah Tussey, Professor of Law
Oklahoma City University School of Law
Oklahoma City, OK 73106