David Bollier

Last year, one of the most significant triumphs for public access to scientific knowledge came when Congress enacted a law requiring all research funded by the National Institutes of Health (NIH) to be available for free on the Internet, under so-called open-access rules. We taxpayers pay some $29 billion a year for medical research, so it is simple justice that we ought to have free and easy access to what we’ve bought. The new rules were a huge victory because they allowed researchers to maintain their copyrights and publishers to publish the articles first – but they also required that the articles be made available on an NIH website within one year of publication.

You would think business people could understand the simple economic proposition that taxpayers should be entitled to own and control what they pay for. But apparently not. Commercial journal publishers are now rallying to overturn the new NIH open access policy. A bill recently introduced by House Judiciary Chairman John Conyers, HR 6845, threatens to revert to the bad-old policy that used to prevail, in which commercial publishers retained a strict monopoly over publication rights to taxpayer-funded research.

Publishers are now trying to advance their case by making vague claims that the NIH policies somehow run afoul of copyright law. The vice president of legal and government affairs at the Association of American Publishers, Allan Adler, has called the NIH policy “unprecedented” and “inconsistent” with copyright law. He explains that the policy “undermines publishers’ ability to exercise their copyrights in the published articles…threatens the intellectual freedom of authors, including their choice to seek publication in journals that may refuse to accept proposed articles that would be subject to the new mandate.”

As usual, Peter Suber, who edits the Open Access Newsletter, makes as astute commentary: No one is taking copyright protection away from authors (in this case, scientists). The new policy merely limits the freedoms of publishers, who have no inherent right to own the articles. “Publishers cannot complain that this infringes a right they possess,” Suber notes dryly, “only that it would infringe a right they wished they possessed.”

Suber then offers a plain-speak translation of the publishers’ arguments:

“OK, the policy doesn’t violate the letter of copyright law, but it violates the spirit, which is that our ability to profit from research we didn’t conduct, write up, or fund should not be put at risk just so that publicly-funded research can be made more useful, by reaching everyone who can make use of it, or just so that taxpayers don’t have to pay twice for access. OK, it’s true that authors are the initial copyright holders in their work, and they are free to transfer all, some, or none of their rights to publishers. But the spirit of copyright law is that they should transfer all of their rights to publishers. We’ve grown to depend on it.

It’s depressing, but not entirely surprising, that two stalwart liberals are backing this betrayal of the public interest to serve a powerful corporate lobby. One is Pat Schroeder, the former congresswoman from Colorado, has headed the AAP for the past 11 years. Her former Democratic colleague on the House Judiciary Committee is John Conyers, who has since become the venerable chairman.

Meanwhile, another liberal stalwart, Howard Berman – the California Congressman who enthusiastically advocates for the motion picture industry, record industry and other copyright bullies – chairs the Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property. At a hearing last week, Berman made the uninformed complaint that the “N” in NIH shouldn’t stand for Napster, implying that the NIH’s open-access policy was ripping off copyright holders.

Excuse me, Mr. Chairman: copyrights belong to authors, not to publishers. And the funders of authors’ works — in this case, U.S. taxpayers — have a legitimate say in directing how that work should be published. Giving them away to commercial publishers exclusively and in perpetuity, does not advance public knowledge, which, after all, is the primary mission of copyright law. It merely gives publishers an indefinite supply of high-quality content that they generally do not even pay for! Sweet deal, if you can get it. Just don’t me pay for the publishing industry’s refusal to update their archaic business models in the face of the Internet’s incredibly efficient modes of distributing information.

The journal Ars Tecnica (John Timmer, September 13) offered a stunning account of the ignorance of members of the Berman subcommittee:

Many of the representatives were clearly in need of a primer in academic publishing. Different members of the Subcommittee expressed surprise at various aspects of the current system, such as the fact that peer reviewers perform the function free (although, as noted, the process of arranging for peer review can be expensive). Also eliciting surprise was the revelation that authors are not paid by publishers for the transfer of copyright.

Fortunately, the scientific, library and academic communities are mobilizing to fight the Conyers legislation. While the law and moral arguments are clearly on the public’s side, that does not usually stop members of Congress from protecting wealthy friends in beleaguered businesses stuck with bad investment choices. Just ask Wall Street.

David Bollier is the editor of OntheCommons.org, an activist and writer about the commons, and author of Silent Theft, Brand Name Bullies and Viral Spiral (forthcoming). This post originally appeared on ONTHECOMMONS.ORG

Copyright 2008 David Bollier

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