Re: American Physiological Society - Comments re. NIH Proposal

[Joseph Esposito <espositoj@gmail.com>]

There is more to this issue than copyright.  Copyrights are assignable.  
If I write a novel (have no fear) I could sign a contract with Random
House in which some or all of the copyright would be transferred;
precisely what parts get transferred are a matter of business negotiation.  
What the NIH is asserting is that an author does not have the full right
to assign part or all of the copyright to a publisher.  While the precise
terms of the proposal are still being debated, it would appear that an
author would be permitted to assign exclusive rights for only a limited
period (6 months, 12 months, whatever).  It seems probable that this will
alter the economic value of those rights that do get transferred.

For the legally minded among us (not myself, I hasten to add), a question
to debate is whether the NIH proposal would effectively declare that
publications based on NIH-funded research are works-for-hire under the
copyright law.  In other words, the NIH is the author, the researchers are
"writers," not authors.  If the NIH is the author under copyright law,
only the NIH could transfer the rights.

Allow me to reiterate a point I made before on this list:  it seems
reasonable to me that any funding agency should be able to stipulate how
publications are disseminated, on the principle that if you paid for it,
you own it.  Whether or not such stipulations are within the NIH's
mandate, I have no opinion.

Joe Esposito 


On Tue, 30 Nov 2004 19:00:42 EST, David Goodman <david.goodman@liu.edu> wrote:
> Dear Ann,
> 
> I don't qualify as legally trained, but I do not have to be, in order to
> recognize that the APS arguments about copyright are nonsense; nobody
> proposes to take away existing copyright. It is no more a violation of
> copyright for the NIH to set specific publication requirements on
> extramural work, than it is for work at Bethesda. The main thing I do know
> about patents is that any sensible investigator and organization get the
> application on record before publishing.  I don't know a thing about
> administrative law, but based on the copyright arguments, I have no reason
> to think any argument in that position paper likely to be correct.
> 
> I have a specific proposal for the American Physiological Society: it
> would further their own interest for them to cooperate with the NIH
> proposal. If they keep fighting against the inevitable, others will see
> them not only as wrong on the merits, but as too obstinate to recognize a
> fair compromise. If they continue on these paths, the future system will
> be organized without them: they are being offered a choice between
> survival or suicide.
> 
> David Goodman, Ph.D., M.L.S.
> Associate Professor
> Palmer School of Library and Information Science
> Long Island University
> dgoodman@liu.edu
> 
> I do not post to multiple lists, but others are welcome to copy or link.
> 
> -----Original Message-----
> From: owner-liblicense-l@lists.yale.edu on behalf of Liblicense-L Listowner
> Sent: Mon 11/29/2004 8:27 PM
> To: liblicense-l@lists.yale.edu
> Subject: American Physiological Society - Comments re. NIH Proposal
> 
> See:  <http://www.the-aps.org/news/nihaccesscomments.htm>
> 
> This site contains a short, though complex, summary of legal issues raised
> by the NIH proposal.  From the legally minded on this list, any comments?
> Ann Okerson/Yale Library