Conyers Reintroduces Fair Copyright in Research Works Act

February 3, 2009. Rep. John Conyers (D-MI) and others introduced HR 801 [LOC | WW], the "Fair Copyright in Research Works Act", a bill to protect the copyright interests and incentives of authors and publishers of research works when the government provides funding for that research.

Rep. Conyers introduced a substantially identical bill late in the 110th Congress, HR 6845 [LOC | WW], also titled the "Fair Copyright in Research Works Act".

Rep. Conyers is the Chairman of the House Judiciary Committee (HJC). The original cosponsors of the bill are Rep. Darrell Issa (R-CA), Rep. Rob Wexler (D-FL), Rep. Trent Franks (R-AZ), and Rep. Steve Cohen (D-TN). All are members of the HJC.

This bill would add a new subsection 201(f) to 17 U.S.C. § 201, which pertains to ownership of copyright.

The bill provides that "No Federal agency may, in connection with a funding agreement ... impose or cause the imposition of any term or condition that ... requires the transfer or license to or for a Federal agency of" certain exclusive rights of copyright enumerated in 17 U.S.C. § 106.

The introduction of this bill follows adoption of a policy by the National Institutes of Health (NIH) titled "Public Access Policy". An appropriations bill mandated this policy.

The NIH provides research funding. It now ties that funding to loss exclusive rights of copyright. It provides public access to peer reviewed NIH funded articles in a NIH internet accessible database. See, NIH release of January 2008.

An NIH spokesman told TLJ on February 6, 2009, that the "NIH's Public Access Policy is in place and has remained in effect from its start date in April 2008".

Allan Adler of the American Association of Publishers (AAP) stated in a release that "While the Government may fund the research, not-for-profit and commercial publishers together invest hundreds of millions of dollars each year conducting peer review, editing, publishing, disseminating, and archiving scientific and scholarly journal articles to inform the research community and the general public about the results of such research.'

Adler added that "This legislation would enable the government to disseminate research funded by the government while ensuring copyright protection and preserving the incentives for the private-sector investments in the journal publishing community."

Patrick Ross, head of the Copyright Alliance, explained in a release the background and purpose of this bill.

He wrote that "Federal copyright law and years of precedent grant copyright owners control of the right of reproduction, distribution, and public performance and display. But in a troubling reversal of this incentivizing precedent, Congress -- without consultation of members with expertise in copyright law -- has given the federal government control over the reproduction and distribution of certain research works without regard to the rights of publishers."

HR 2764 [LOC | WW] (110th Congress), the "Consolidated Appropriations Act, 2008", which was signed into law on December 26, 2007, and is now Public Law No. 110-161, provides that "The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."

Ross wrote that "The mere fact that a scientist accepts as part of her funding a federal grant should not enable the federal government to commandeer the resulting peer-reviewed research paper and treat it as a public domain work."

He added that "Grants are provided to pay for the research and resulting data, which is generally freely and immediately available. But taking the scientist's copyrighted interpretation of the data is not fair to other funders, and it violates the rights of the publisher."

Ross also wrote to TLJ regarding the NIH's approach. First, he stated that NIH funded researchers have all along provided their data and conclusions to the NIH. NIH has "that information long before any paper is written and can do with it what they like. Why aren't they more aggressive at getting that information out?"

Second, Ross wrote that "the NIH isn't asking for all papers produced as a result of NIH grants. No, they only want the peer-reviewed ones. The vast majority of papers are not accepted for publication by major journals and thus do not enjoy that peer review process. NIH could apply a quality filter to the data it pays for and collects, but instead it outsources without compensation the quality filtering to journal publishers."

Ross concluded, "One would have to assume that if this remains unchanged other federal agencies will contact their appropriators for the same deal."