RE: NIH issues

[Kevin L Smith <kevin.l.smith@duke.edu>]

I have a hard time understanding just what kind of interest a 
"third party agency" could acquire here, assuming that the 
"substantial value added" refers to peer-review.  In the process 
of peer-review no one adds any original expression to the article 
itself except the author, who holds the copyright anyway until he 
or she is foolish enough to transfer it.  The author makes 
whatever changes are recommended by the peer-reviewers, thus 
creating the final author's manuscript, which is what must be 
deposited in PMC.  No copyright interest has been acquired by 
anyone else through this process; the author still owns the full 
interest, or else has transferred it to the publisher subject to 
the prior NIH license.  Nothing is taken from the publishers that 
they have any rights in in the first place.

Nothing that I can think of would more upset academic authors 
than the claim that publishers are making substantive changes to 
the expressive contents of their articles; that claim, if made 
and substantiated, might really put an end to the wholesale 
transfer of copyright for academic publications.

In any case, from I what I hear about H.R. 801, I think there are 
two things that are true of it.  First, it is very unlikely to 
pass the House and absolutely DOA in the Senate if it does. 
Second, Mr Conyers, who introduced it, does not care one whit 
about the NIH policy or some alleged unfairness to publishers; he 
is simply miffed that this policy was included in a 
appropriations bill instead of going through his committee 
(Judiciary).  H.R.801 is a weapon in a turf war between 
appropriators and those who think of themselves as the policy 
experts, and the ironic product of that war is a piece of very 
bad policy indeed.

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
PO Box 90193
Durham, NC  27708
919-668-4451
kevin.l.smith@duke.edu
http://library.duke.edu/blogs/scholcomm/
_______________

"T Scott Plutchak" <tscott@uab.edu>
Sent by: owner-liblicense-l@lists.yale.edu
Subject RE: NIH issues

As is often the case, I agree with Joe slightly more the 60% or 
so.  I don't think that HR801 says that the government can't 
require an author to assign copyright.  It is a slightly more 
subtle argument -- that it can't require an author to assign that 
transfer when the work in question has had substantial value 
added through the agency of a third party, which gets back to 
Joe's point about editorial review.

The kind of report repository that Joe describes would certainly 
satisfy the requirement that the public should have easy access 
to the results of NIH funded research, but that's not really what 
this argument is about.

Further thoughts, based on my presentation at the ER&L Conference 
last week, can be found here: 
http://tscott.typepad.com/tsp/2009/02/what-i-said-about-public-access-at 
-the-erl-conference.html

T. Scott Plutchak

Director, Lister Hill Library of the Health Sciences
University of Alabama at Birmingham
tscott@uab.edu


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Joseph Esposito
Sent: Tuesday, February 17, 2009 5:21 PM
To: liblicense-l@lists.yale.edu
Subject: NIH issues

Never thought I would be writing this, but the bill to overturn
the NIH's open access policy is wrongheaded, in my opinion.  Now
that I have zero friends among traditional publishers (not that I
ever had many), let me explain.

The current NIH policy, in my view, is terrible, as it takes
property it didn't pay for, namely, the editorial review
performed by publishers; and it is reviewed material that is
intended to go into the publicly available repositories.  The OA
activists strongly disagree with my perspective and will no doubt
pounce on this post.

My reading of the "anti-NIH" bill, however, is that it goes too
far.  By my reading it is saying that the government cannot
require an author to assign a copyright.  This I don't
understand.  Publishers do this all the time; it would be a rare
publisher that has never used, say, a work-for-hire agreement.
Is it not reasonable for an organization to say, "We are paying
you to do something and we own what we pay for"?  I personally
signed two such agreements this week, agreeing to assign to
clients any intellectual property I created on their dime.

Where I would have liked the NIH brouhaha to end up is with the
NIH creating a repository (or causing to have one created by a
more skillful IT organization)for reports submitted by resarchers
as a condition of funding. There would be a template for such
reports (what to include, length, access to underlying data,
etc.), and the reports would be part of the public record. Note
that these reports would not go through a formal peer review
process unless the individual researcher sought such review.

All reports in the repository would be open for all to use, for
any purpose whatsoever, including commercial exploitation.
Three conditions:  cite the author, cite the NIH, and don't
change the text without the author's approval.  Yes, indeedy,
this would have major structural implications for certain
segments of STM publications.

Looks like this is not going to happen.  Blame it on the OA
activists, who asked for too much and now may get nothing.

Joe Esposito