Re: Letter from 46 law professors to the House Judiciary Committee

[Sandy Thatcher <sgt3@psu.edu>]

I have no quarrel with the legal argument provided by this 
distinguished group as it applies to the NIH policy. But the same 
argument does not apply to the government's attempt to 
expropriate the content (including editorial apparatus) of the 
Papers of the Founding Fathers published by a number of 
university presses, which exemplifies the kind of expropriation 
of publisher's value added that the AAUP opposes. Unlike the NIH 
policy, this proposed expropriation involves the final work as 
published and includes everything the publisher adds, for which 
the government has provided no funding whatsoever.

Sandy Thatcher
Penn State University Press


>A brilliant defense of the NIH Green OA Self-Archiving Policy
>against the absurd charges of the publisher's lobby and its
>attorneys in the Conyers Bill.
>
>I generally avoid the legal aspects of OA because I can see so
>clearly that 100% Green OA can be quickly and easily achieved
>without having to waste a single minute on legal obstacles (via
>the IDOA Mandate). But this is such an articulate and rigorous
>set of legal arguments that I could not resist posting them
>further just for the delight of the ineluctable logic alone.
>
>Read, enjoy, admire, and rest assured that whether via the
>legalistic route or just good, practical sense, OA will prevail.
>It is optimal, inevitable, and irresistible. The anti-OA lobby is
>wasting its money in trying to invoke law or laws to stop it; at
>best, they can just buy a bit more time. (But if universities and
>funders opt directly for IDOA mandates, that will deny the
>anti-OA lobby even that.)
>
>Stevan Harnad
>
>PS Unless I am mistaken, one detects the unseen legal hand and
>mind of Peter Suber, plus a goodly dose of the seen hand and mind
>of Michael Carroll in the drafting of this masterpiece.
>
>---------- Forwarded message ----------
>
>September 8, 2008
>
>The Honorable John Conyers, Jr.
>Chairman
>Committee on the Judiciary
>U.S. House of Representatives
>2138 Rayburn House Office Building
>Washington, D.C., 20515
>
>Re:  NIH Public Access Policy
>
>Dear Chairman Conyers:
>
>The undersigned professors at law schools throughout the United
>States teach copyright law or engage in scholarly research about
>copyright law.  We write to respond to serious misstatements
>relating to copyright law contained in a recent submission to the
>National Institutes of Health with respect to the relationship
>between the NIH Final Policy on Public Access and certain aspects
>of U.S. and international copyright law.  The letter (hereafter
>"the Proskauer Letter") was written by Jon A. Baumgarten of
>Proskauer Rose LLP, dated May 30, 2008, to Allan Adler, Vice
>President for Legal & Government Affairs, American Association of
>Publishers in response to Mr. Adler's request and with the
>understanding that the letter would be part of a public
>submission to NIH by the AAP.
>
>As you know, the NIH Policy requires grantees to ensure that all
>investigators funded by NIH submit an electronic version of their
>final peer-reviewed manuscripts to the National Library of
>Medicine's PubMed Central (PMC), which then makes the manuscript
>publicly available within twelve months of the official date of
>publication. The NIH adopted this policy as required by a
>provision included in the Labor, Health and Human Services,
>Education, and Related Agencies FY 2008 Appropriations Bill.
>
>The Proskauer Letter alleges that the NIH Policy may constitute
>an involuntary transfer of copyright in violation of Section
>201(e) of the Copyright Act.  Contrary to the Proskauer Letter's
>assertions, the Policy does not create an involuntary transfer, a
>compulsory license, or a taking of the publishers' or
>investigators' copyright.  Rather, under the Policy, NIH
>conditions its grant of funding on the grantee's agreement to
>ensure that investigators provide PMC with a copy of articles
>reporting NIH-funded research along with a non-exclusive
>copyright license to make the article publicly available within
>one year after the article's publication in a journal.
>
>In other words, if the investigator chooses not to receive NIH
>funding, the investigator has no obligation to provide the
>article to PMC or a copyright license to NIH.  But if the
>investigator elects to receive NIH funding, he or she accepts the
>terms of the grant agreement, which include the requirement to
>deposit the article with PMC so that the article can be made
>publicly accessible within one year after publication.  Because
>the investigator has this basic choice, the policy does not
>constitute an involuntary transfer.
>
>Furthermore, because the author makes this choice long before the
>publisher enters into the picture, the policy does not take any
>intellectual property away from the publisher.  When the
>investigator transfers copyright to the publisher, as most
>publishers require as a condition of publication, the copyright
>is already subject to the non-exclusive license granted by the
>investigator to NIH.  Thus, the policy does not change the scope
>of the publisher's copyright after the publisher has acquired it.
>
>Additionally, it is important to note that the Policy requires
>deposit of the author's final manuscript after peer review, not
>the final published version of the article.  This aspect of the
>Policy renders moot any debate about whether the publisher
>obtains a copyright interest in the article through the process
>of copy editing or layout.
>
>The publisher performs its copy editing after the investigator
>submits the manuscript to PMC.  While the publisher plays a role
>in coordinating peer review, this process does not result in any
>copyrightable expression attributable to the publisher.  Any
>edits or additional text written in response to peer reviewers'
>comments is written by the investigator, not the publisher.
>
>Building on the erroneous premise that the Policy is an
>involuntary transfer of copyright or a compulsory license, the
>Proskauer Letter then suggests that the NIH Policy might violate
>U.S. obligations under the Article 9 of the Berne Convention or
>Article 13 of the TRIPS agreement.  This argument lacks any basis
>in law.  As discussed above, the NIH Policy governs the terms of
>contracts, not exceptions to copyright law.  As such, the Policy
>in no way implicates Article 13 of TRIPS or Article 9 of the
>Berne Convention, which address permissible copyright exceptions.
>These treaty provisions are completely silent on the issue of the
>terms a licensee can require of a copyright owner in exchange for
>valuable consideration.
>
>The federal government provides funding to state and local
>government agencies and private entities for a wide range of
>activities, including homeland security, law enforcement,
>agriculture, transportation, education, and research.  Congress
>frequently imposes conditions on recipients of this federal
>funding. While one might question the wisdom of a particular
>condition, Congress without doubt has the authority to impose
>them.  Similarly, Congress has the authority to require NIH
>grantees to deposit their manuscripts with PMC and to grant a
>license to make these publicly accessible over the Internet
>within a year of publication.  Such a requirement conflicts
>neither with the Copyright Act nor with international treaty
>obligations.
>
>Respectfully,

[SNIP]