Re: NIH Public Access Mandate Passes Senate

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

You seem to be demanding an unrealistically absolute notion of 
ownership in this case that has not existed for any type of 
property in the Anglo-American legal system since the Norman 
Conquest.  As flawed as the analogy between IP and tangible 
property is, it may be helpful here.

According to the deeds, I have owned two houses "in fee simple" 
-- the most absolute form of ownership we recognize.  Yet my 
first house was subject to two easements, one for powerlines 
running along the back of the property and one for a shared 
driveway.  My current resident had, as a condition of purchase, 
agreement to a homeowners association covenant. Both pieces of 
property are subject to taxation, recordation requirements and 
zoning laws.  Is my ownership of my house "unpersuasive" because 
I am prevented from running a law practice out of my garage?

Ownership of personal property is similarly conditional.  I have 
to register my car, get it inspected and pay taxes on it.  If I 
use it in ways proscribed by the government it is even subject to 
seizure.

Intellectual property, of course, has always been subject to 
limitations and exceptions.  A large chunk of the copyright act 
-- sections 107-122 -- detail these limitations, including a 
number of compulsory licenses.  Why do these not render copyright 
ownership illusory, but the NIH requirement would? Trying to 
shift the terms of debate by claiming that this mandate would 
turn all academic writing into work made for hire is really 
unpersuasive, given that many similar restrictions that already 
exist do not have that effect.  The real issue, of course, is not 
that authors' rights are in danger, it is a mistaken perception 
that the income stream of publishers will be threatened; we 
should have the debate on those terms, where the author's 
interests may well lie on the side of public access.

Kevin Smith

****

"Joseph J. Esposito" <espositoj@gmail.com>
Sent by: owner-liblicense-l@lists.yale.edu
10/30/2007 07:57 PM
Subject 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