Re: NEJM editorial on open access

["Michael Carroll" <Carroll@law.villanova.edu>]

There are a couple of misperceptions here:

1: "The NIH apparently is insisting that for articles based on NIH-funded
research, the authors are free to assign only NONEXCLUSIVE rights to a
publisher after six months have elapsed (but six months from when?  That
is not clear to me)."

No.  Copyright grants to the author the exclusive rights to reproduce,
distribute, adapt, display, and perform the copyrighted work.  Under the
proposal, the author is free to transfer all of these exclusive rights to
a publisher, subject to NIH's non-exclusive license to make use of the
article in a variety of ways, including posting it on the web.  This
allocation of copyright has been in place for a very long time, and
nothing in the NIH proposal makes a change in this regard.  NIH, along
with nearly all government agencies, have a standard rights-in-data clause
in their grants and contracts that give the U.S. government such a
non-exclusive license to any copyrighted works produced under the grants
or contracts.

2:  "Libraries and some individuals will begin cancelling subscriptions
when they see more and more articles becoming available at no charge after
six months, accessible to anyone who can Google for them.  Hence a
distinction without a difference."

Where's the evidence for this?  Many publishers themselves are making
their articles openly available after an embargo period, ranging from
three months to a year.  Why doesn't this cannibalize their own sales?  
Because they're selling subscriptions to bundles of articles, and open
accessibility to individual pieces of the bundle much later than when an
issue is released is not a viable substitute for most if not all
purchasers of subscriptions.

3. "It simply is a plea that we accept the consequences of our actions,
which in this case will be the flight of capital from scholarly
publishing."

The evidence does not support this view.  The combination of current
self-archiving policies and the publishers' own provision of open access
to back issues has not caused this capital flight, so you'll need to show
how availability of pre-prints of select articles in PubMed Central is
going to bring about the radical shift you suggest.

Best,

Michael W. Carroll
Associate Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
610-519-7088 (voice)
610-519-5672 (fax)

See also www.creativecommons.org