Re: American Physiological Society - Comments re. NIH Proposal

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

Alliance for Taxpayer Access

For Immediate Release
Thursday, November 18, 2004

"FATALLY FLAWED" LEGAL ANALYSIS WILL NOT STAND IN THE WAY OF NIH PUBLIC
ACCESS PLAN

Legal Experts Challenge 11th Hour Allegations on Copyright Law

Washington DC (November 18, 2004) - Legal scholars advising the Alliance
for Taxpayer Access quickly dismissed the faulty analysis made by the
American Physiological Society's outside counsel suggesting the National
Institutes of Health's public access plan will infringe copyright claims
of grantees and publishers.  [The claims were included in the APS comments
filed with the NIH this week.]

In rebuttal, intellectual property expert Michael Carroll stressed that
the NIH proposed policy is "completely consistent with the scope of NIH's
license and mission," and labeled the APS analysis a "fatally flawed house
of cards."

Serving as adviser to the Alliance for Taxpayer Access, Carroll is an
expert on intellectual property and Internet law, and teaches on the law
faculty at Villanova University School of Law.

According to Professor Carroll, "The publishers acknowledge that NIH has
always had license to reproduce, publish and archive the research results
that it has paid for.  It is explicit; there is no question about that."

"Their analysis is built on the false premise that NIH is making a change
to copyright law.  The fact is, in all cases, NIH grantees must give NIH a
royalty-free, nonexclusive, and irrevocable license for the Federal
government to 'reproduce, publish, or otherwise use' the material and to
authorize others to do so for Federal purpose.  Nothing in this proposal
alters the terms of NIH's license and consequently, copyright law is not
an obstacle for the NIH to move forward.  Most of the APS counsel's other
arguments rely on this misunderstanding of copyright law, and therefore,
are inapplicable."

"Nothing could be more consistent with the federal purpose of NIH than
collecting this research in an archive and allowing taxpayers and
follow-on researchers to have access to the fruits of their NIH
investment."

Rick Johnson, director of the Scholarly Publishing and Academic Resources
Coalition added, "These 11th hour comments appear to have one intention.  
That is to throw seeds of confusion and legal doubt, where, in fact, there
is none.  The NIH proposal builds on current practice and it advances
NIH's aim to use today's information technologies to fulfill its public
mission.  This is about special interests rising up to contravene NIH's
efforts to serve and be accountable to the public."

Johnson cited the NIH mission as well as its commitment to public access
to underscore the true purpose and legitimate scope of the NIH Enhanced
Public Access directive, as shown below:

NIH Mission

The mission of the National Institutes of Health (NIH) is to uncover new
knowledge that will lead to better health for everyone. The sharing of
ideas, data, and research findings is encouraged by NIH as a primary
mechanism for accomplishing this important public mission.

Public Access

Advanced computing technologies and a networked environment are creating
an infrastructure that supports new research capabilities, expands the
ability to build upon and connect the work of many scientists, and
facilitates exploration of new scientific frontiers. These technological
advances are providing new opportunities to enhance access to and archive
the scientific literature.

Press Contact:
Bob Witeck, Witeck-Combs Communications for ATA
202-887-0500 ext. 19
202-997-4055 (mobile)
bwiteck@witeckcombs.com