House Hearing on "Fair Copyright in Research Works Act"

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Publication date: 
19 September 2008

"We have a lot more to exhaust here" said Rep. Howard Berman (D-CA) in his closing remarks as the chairman of the Subcommittee on Courts, the Internet, and Intellectual Property at a hearing last week on H.R. 6845, the Fair Copyright in Research Works Act.

H.R. 6845 ensures copyright protection for articles in scientific journals resulting from federally-funded research activities.  The American Institute of Physics is a publisher of scientific journals and supports this legislation.  See this site for explanatory information and supporting materials on AIP's position, including written testimony submitted to the subcommittee by H. Frederick Dylla, Executive Director and CEO.

  There was considerable disagreement among the hearing's four witnesses and the subcommittee Members about NIH's current public access policy and this six-page bill.  There was, however, agreement by the witnesses that the peer-review process is vital.  While proponents of free public access to scientific articles contend that tax-payer supported research results, including the final published manuscript, should be available without charge, no one supported medical research results being available on NIH's site without first undergoing peer review.   Before articles are published in scientific journals they undergo this  peer review.

There was also agreement that the results of taxpayer-supported research should be available to researchers and the general public.  At issue is whether this access to peer-reviewed manuscripts should be free.

National Institutes of Health Director Elias Zerhouni's testimony provided background on the evolution of NIH's on-line archive of biomedical journal articles, known as PubMed Central.  He explained that the House Appropriations Committee raised concern about public access in 2003.  In 2005, NIH adopted a voluntary submission policy with a twelve-month embargo period for published manuscripts.  The Appropriations Committee, through the Consolidated Appropriations Act of 2008, required mandatory deposition of NIH-supported published manuscripts.  Zerhouni told the subcommittee: "The policy has two basic premises: 1) the integration and accessibility of biomedical research will speed discoveries, resulting in the prevention of death and disability; and 2) the public has a right to have full access, without charge, to research findings supported by taxpayer dollars, after a reasonable period of embargo."

Ralph Oman of the George Washington University Law School began by telling the subcommittee "I don't have a dog in this fight."   He testified that "the NIH proposal seems short-sighted, counterproductive, damaging to U.S. creativity, which this subcommittee fosters and safeguards, and contrary to the NIH’s own interests in encouraging broad public dissemination of peer-reviewed learned articles."

In discussing peer review Oman stated: "Many of my colleagues in academia recognize that the STM [scientific, technical and medical] publishers perform many vital functions in bringing these articles into the public forum. For one thing, they make substantial investments in the peer-review process. While they do not as a general rule pay the reviewers, the publishers hire in-house teams to support outside specialists. These teams arrange and coordinate effective distribution, stay close to the academic experts in the discipline personally and professionally, follow the literature, and engage in on-going communications with the authors about the reviewers’ comments and the incorporation of those comments into the manuscript."   He continued: "In addition to the peer-review process, the publishers make judgments about which of the manuscripts to publish, depending on their quality and the level of interest in the research itself. They also edit the manuscripts and make them presentable for publication.

"My basic concern," Oman said, "about the NIH proposal is that it will, sooner rather than later, destroy the commercial market for these scientific, technical, and medical journals. If this dark prophesy comes to pass, who, I wonder, will handle all of these expensive and sensitive administrative details?"

The third witness was Heather Dalterio Joseph who is the director of the Scholarly Publishing and Academic Resources Coalition and who was also appearing on the behalf of the Alliance for Taxpayer Access and Association of Research Libraries.  She stated: "It is only through the use of these findings that funders - and, by extension, taxpayers - obtain value from their investment. Faster and wider sharing of knowledge fuels the advancement of science and accordingly, the return of health, economic, and social benefits back to the public."  Joseph said that "colleges, patients, physicians, researchers and members of the public cannot access taxpayer-funded research findings because they simply cannot afford to subscribe to all of the journals in which these findings are published."   She cited a letter signed by 45 law professors and told the subcommittee "the NIH policy in no way conflicts with U.S. copyright law."  Joseph added: "The policy is designed to create a broadly accessible, permanent archive of the results of NIH-funded research in order to advance the conduct of science and enhance the agency’s accountability to the public. In short, this Policy ensures that the U.S. taxpayers are able to benefit fully from the research that they have underwritten."

Joseph disagreed with the fear that publisher revenues would decline, stating: "First, the current NIH Public Access Policy is a compromise policy that contains safeguards against this happening. Authors who receive NIH funding are required to deposit only their final accepted, peer-reviewed manuscript - the raw, word-processing file – into PubMed Central, rather than the final, copyedited, formatted, enhanced --and copyrighted -- version that will ultimately appear in the journal. The final articles with these value- added features remain solely the publishers to distribute and sell as they choose."

"Second," she testified, "the NIH Policy allows an embargo period of up to one year before a manuscript becomes publicly available. In the realm of the extremely fast-moving, crucial biomedical research funded by the NIH, information, after one year, is already old. The value in the articles resulting from this research lies largely in their immediacy.

"Finally, there are very few, if any, journals that publish only research articles that have resulted from NIH funding. The vast majority of journals publish articles resulting from other funding sources, along with review articles, editorial material, commentary, and other value added material," Joseph concluded.

Martin Frank, Executive Director of the American Physiological Society disagreed.  "Mandatory requirements like those implemented by NIH undermine scholarly publication.  Copyright protections have spurred the investments and infrastructure needed to maintain a robust and thorough pre-publication peer review process in the digital age.  These are costly endeavors, and if the publishers cannot recover their costs, the quality of our journals will suffer to the detriment of our members's science."    Frank added: "As scholarly publishers, it is our mission to maintain and enhance the independence, rigor, trust, and visibility that have established our journals as reliable filters of information emanating from basic and clinical research. This is a key feature of the partnership between scholarly societies and their members. Our common goal is to advance science and patient care by ensuring that research meets the highest standards. The government undermines our publishing activities when it diminishes one of our most basic rights under copyright – namely, the right to control the distribution of the works we publish."  Frank reviewed studies which found that  "a significant number of librarians would be likely to cancel subscriptions when some of a journal's peer-reviewed manuscripts are available freely through open access," and another which found that in the life sciences, 40 percent of an article's usage occurs after twelve months.   The written testimony of all the witnesses is available here

At issue in this two-hour hearing  was H.R. 6845, the Fair Copyright in Research Works Act. It  is sponsored by House Judiciary Chairman John Conyers (D-MI), and is cosponsored by subcommittee members Darrell Issa (R-CA) and  Robert Wexler (D-FL).  Under this bill, no federal agency would be allowed to require the transfer of a license for an "extrinsic work."  The bill defines an extrinsic work as work other than a work of the U.S. government  "that is based upon, derived from, or relating to, a funding agreement and (i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party, or (ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party."  The "funding agreement" refers to a contract or grant or other agreement "for the performance of experimental, developmental, or research activities."

At the outset of the hearing, subcommittee chairman Berman cited the billions of dollars spent on research supported by NIH and National Science Foundation and the success of peer review of research results.  He briefly summarized the arguments for and against H.R. 6845,  saying "I see merit to both sides," and then added that it was a "difficult question indeed."  Berman explained that the House Judiciary Committee had not been given a chance to consider the NIH policy since the appropriators moved first, a point that full committee chairman Conyers later expanded on.

Subcommittee ranking minority member Howard Coble (R-NC) described this as "not your typical copyright issue," and said he "needed more time to learn and think about this issue."

Conyers, the author of the bill and the chairman of the Judiciary Committee, had no doubts.  He spoke of the "very questionable premises" surrounding the establishment of the NIH policy, and criticized the House Appropriations Committee for its action and its "zero" communication with his committee. Cosponsor Issa spoke in similar terms, citing the need to balance the right of the public to have timely access to data, while maintaining the benefits of copyright.  The language in H.R. 6845 was not perfect, he said, but "close."

Berman asked Zerhouni if a provision in the America COMPETES Act which requires summaries to be made available of research results was "a middle ground."  Zerhouni replied "we do not believe so," saying that peer review is vital.  Frank described the costs that are entailed in publishing a peer-reviewed article, and explained that someone would have to bear those costs.  He asked if these costs should be borne by the researcher or by the user of the research results.

Coble asked about the incentives publishers have to manage the peer review process, and whether NIH would be willing to do it.  Oman doubted that the federal government could do the detailed evaluations now undertaken by peer reviewers.  NIH Director Zerhouni said "we don't want to do peer review."

Other subcommittee members asked about non-biomedical journals, the rationale for the twelve month embargo period, the policies of non-federal supporters of biomedical research, the value of peer review, the relationship of information connectivity in NIH's PubMed Central to publications, and the relevance of the Bayh-Dole Act to public access.

The hearing adjourned without a clear indication of how this issue would be resolved.  Regarding H.R. 6845, Zerhouni told the subcommittee, "The Administration is reviewing this bill and will get back to you with our views on it."  Berman commented, "I'm still somewhat torn."

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