NIH Public Access Policy To Face Copyright Challenge in Congress?

Andrew Albanese -- Library Journal, 9/5/2008

• Hearing scheduled for September 11
• Response to publishers' concerns about public access
• Publishers had been warning of a challenge

In less than a week, on Thursday, September 11, the Subcommittee on Courts, the Internet, and Intellectual Property of the House of Representatives' Judiciary Committee is scheduled to hold a hearing on what sources tell LJ is a legislative attempt to redress publishers' concerns that public access policies—namely the recently enacted policy at the National Institutes of Health (NIH)—conflict with copyright and intellectual property laws. No text has yet been released for the legislation, tentatively titled the “Fair Copyright in Research Works Act.” Nor has the hearing appeared on the subcommittee's schedule. 

The legislative hearing comes after publishers succeeded in adding a key phrase to the NIH public access mandate just before the bill’s passage in December, 2007—that the NIH policy be implemented “in a manner consistent with copyright law.” As LJ reported then, that simple phrase appeared to position publishers for a possible legal or legislative challenge to the policy.

Challenge emerges
In recent months, the possibility of a legal or legislative challenge began to seem almost certain: in comments to the NIH on implementation this spring, the Association of American Publishers (AAP) included a legal memo from law firm Proskauer Rose backing publisher claims that the NIH policy conflicts with copyright law, and in June, NIH director Elias Zerhouni denied publishers’ request that the policy go through a federal rulemaking process.

Shortly after passage of the NIH public access policy, AAP’s VP for legal and government affairs Allan Adler reiterated publishers’ position that the measure was “unprecedented” and “inconsistent” with intellectual property laws, and vowed publishers would continue opposition. “[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,” he said. AAP officials, contacted today, were unavailable for comment.

Library groups' concern
Anticipating such a challenge, officials at SPARC and the Association of Research Libraries, however, have strongly denied that the NIH public access policy conflicts with copyright, last year preparing a memo of their own. “Contrary to the STM publishers’ assertions, this policy does not create a statutory exception or limitation to an investigator’s copyright,” the memo states. “Rather, it merely requires the NIH to condition its grant of funding to the investigator on his agreement to provide PMC [PubMed Central] with a copy of his article for the purpose of making the article publicly available via PMC.”

The notice of the hearing comes as submission statistics for PMC indicate the mandatory policy is having a dramatic effect. For July 2008, submissions to PMC nearly hit 4000—in July of 2007, under the NIH’s “voluntary” policy, PMC saw just 721 submissions.