New Wrinkles as Bill Banning NIH-Like Public Access Resurfaces

Andrew Albanese -- Library Journal, 2/5/2009 1:25:00 PM

• Bill counter to Obama's pledge for openness in government? 
• IP subcomittee abolished
• NIH without public access advocate Zerhouni

As library officials expected, the Fair Copyright in Research Works Act, a controversial bill that seeks to ban NIH-like public access policies, was reintroduced in the 111^th Congress this week, just months after being shelved at the end of 2008. And while near-universal opposition to the bill remains—changes in the political and bureaucratic landscape could mean a tougher battle in 2009 for those opposed to the bill.

Following last year's hearing, lawmakers all but ruled out action on the bill in 2008, saying the issues needed to be studied more. If the issues were studied more, however, it’s hard to tell. Not only was the bill reintroduced early in the 111^th congress by Congressman John Conyers (D-MI), it was introduced without revision, despite extensive criticism and comment, and broad opposition from a range of stakeholders, including librarians, Nobel Prize-winning researchers, and a coalition of law professors and copyright experts.

SPARC executive director Heather Joseph, who testified at a Congressional hearing on the bill last September, told the LJ Academic Newswire she was somewhat surprised the bill resurfaced so soon. “I am also a bit surprised that Mr. Conyers would introduce a bill that is so diametrically opposed to the new administration’s push for openness and transparency in public agencies,” she added.

Changing landscape 
Although the text of the bill has not changed, the landscape in Congress has—with Conyers consolidating his power over copyright-related issues. At the end of the last term, Conyers dissolved the Subcommittee on Courts, the Internet, and Intellectual Property (IP)—just as former LJ Politician of the Year Rick Boucher (D-VA)—a strong library, and fair use advocate—was next in line to chair the subcommittee, following chairman Howard Berman’s (D-CA) ascension to the head of Foreign Affairs. Instead, however, Conyers abolished the subcommittee, bringing IP and digital copyright issues—including HR 801—under his purview in the Judiciary Committee.

In comments after last year’s hearing, Conyers suggested that his opposition to funding mandates like the National Institutes of Health’s (NIH) was not based so much on copyright, or the merits of the NIH policy, but instead was part of Congressional border war. Conyers lashed out at the House Appropriations Committee, telling Congress Daily that he was frustrated by the committee’s refusal to engage the Judiciary Committee, which Conyers chairs, about the copyright and intellectual property implications associated with the NIH mandate. He fumed that appropriators had encroached on his committee’s “sacred turf,” in enacting the NIH mandate, and had acted “summarily, unilaterally and probably incorrectly.”

It is unknown how Conyers will approach copyright and Internet issues in the Judiciary Committee. While an IP subcommittee chaired by Boucher would clearly have been a net gain for libraries, the removal of Berman (and his subcommittee), a staunch proponent of draconian copyright and Digital Rights Management (DRM) policies, could nevertheless prove positive for libraries.    

NIH without Zerhouni
Potentially more troublesome for the NIH mandate, however, Elias Zerhouni, the NIH executive director who strongly advocated for and implemented the mandatory public access policy, has left the agency. A permanent replacement has yet to be named by the Obama administration. At the end of last year, Zerhouni appointed his colleague Raynard Kington to head the agency on an interim basis, and while Kington, and the agency, are believed to support public access, it remains to be seen how much political capital he and the agency have to play in Congress.

At last year’s hearing on HR 6845, Zerhouni offered a spirited defense of the public access mandate, and was clearly bemused the policy to face such a legislative challenge. Peter Suber, on his open access blog, called Zerhouni “a strong friend of OA” who will be missed. “Whether his retirement is a setback for OA will depend on who succeeds him,” he noted.

“NIH appears to continue to firmly support the policy, and continue to work to improve implementation for its funded researchers,” Joseph told LJAN, though conceding that there is always a chance that a new director may not be as supportive. “But again, given the Obama administration’s focus and initial actions, you have to believe that the NIH policy is something they will continue to support.”

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