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Re: NIH Public Access Mandate Passes Senate

Mandating a nonexclusive right means that the author does not fully control the rights. Okay, fair enough: if you don't believe that an author should have the full rights, why not just say that? Saying one own something except for when one doesn't isn't persuasive.

As I said in my original post, I have no problem with saying that work funded by a third party should be considered a work for hire. What I find troubling is the pretense that this is about authors' rights when it in fact is taking away some authors' rights.

And this is why mandates are necessary, because open access does not have the full support of the authors themselves. There are exceptions to this and they are significant.

My own view of a better policy (seconding in part Ann Okerson's recent comment to this list, but I doubt she would extend the remark as I am) is that government-funded research should be written up and posted to government-funded open access Web sites without an embargo. In this formulation the author (really "the writer") has no rights in the work except for those the granting body chooses to assign to him or her. In some instances, the funding agency may choose to claim authorship of this work, as the work-for-hire statute provides (as in "copyright (c) by the NIH").

This will ultimately be much more expensive than the current system, but if costs were the issue, we wouldn't be talking about open access to begin with.

Joe Esposito


----- Original Message -----
From: "Kevin L. Smith" <kevin.l.smith@duke.edu>
To: <liblicense-l@lists.yale.edu>
Sent: Monday, October 29, 2007 4:09 PM
Subject: Re: NIH Public Access Mandate Passes Senate

I am not sure any of these questions are really relevant to a discussion of the NIH public access mandate, but I am certainly willing to offer my answers to them from the perspective of a supporter of that policy.

1. An author should have ownership rights in their own work, in my opinion. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language, which was included in Ray English's post, requires that the mandate be implemented in a way consistent with an author's ownership of copyright.

All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author's ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author's reputation, which is the real value academic authors are able to extract from their copyright ownership.

2. I also support an author's right to transfer their rights by contract; I spend a good deal of my time advising academic authors about how to do that in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer's ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.

Remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.

3. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors' hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.

When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.

4. Given the reply to number 3, the scope of a university's work for hire claim is really not relevant. But I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions, recognizing, as they do, that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.

These responses have helped me clarify for myself why I believe that the real threat to authors' copyrights is not the NIH public access policy, but the outdated approach to publishing that tries to build an exclusive market around a non-competitive good.

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
Durham, NC 27708
kevin.l.smith@duke.edu

-----owner-liblicense-l@lists.yale.edu wrote: -----

From: "Joseph J. Esposito" <espositoj@gmail.com>
Sent by: owner-liblicense-l@lists.yale.edu
Date: 10/26/2007 07:30PM
Subject: NIH Public Access Mandate Passes Senate

I can't speak to the bill's expectations regarding a veto, but I am troubled that none of the questions that are at the center of this discussion (center as defined by yours truly) have come up anywhere that I have seen. So, my list of questions:

1. Do you believe an author should have the right to ownership of his or her own work? That right would include the ability to charge for access if anyone is interested in participating in a market. Or should an author (at least of scholarly materials) have no presumption that he or she owns his written work?

2. If you are comfortable with #1 (that is, you support an author's choice to assert traditional copyright), do you believe an author should be able to transfer that right to another entity, whether a publisher or any other institution? Does an author have the right to enter into a contract concerning his copyrights?

3. Most academic authors do their work while being compensated by others--a university, for example, or a grant-giving body. Should that fact alone (being paid to write up research) be sufficient reason to assert that the copyrights belong to the funding body? In effect, is an academic author's writing a work for hire under the copyright law? (A corporate employee who writes materials or software or whatever does so as work for hire.)

4. If you take the position in #3, should the work-for-hire status extend to other intellectual property created while in the employ of a university? Patents? Textbooks? If textbooks (which in some instances literally provide hundreds of thousands of dollars in royalties to authors who teach at universities) are to be covered by work-for-hire, how will this policy be introduced to faculty? Also, how would you handle related activity such as consulting? Is this all work for hire?

The principle that sits behind all these questions is that of authors' rights. The open access movement is all about readers' rights, but should an author have the right to own the fruits of his own labor and the right to contract for the sale of that work?

Incidentally, while I personally lean toward points ##1 and 2, the case for #3 is not unreasonable. I simply can't square it with #4. Someone else may have the privilege of telling the faculty of the Stanford Business School that they have to turn over their consulting income (including stock options) to the university.

Best,

Joe Esposito