Blown To Bits

Watching the Lawmakers

Wednesday, February 25th, 2009 by Harry Lewis

You might think, with all the troubles the country has, that our elected representatives would have better things to do than to keep the results of publicly funded scientific research away from the eyes of the public. You’d be wrong. Represenatitive Conyers from Michigan (of all places where you might think the congresspeople might be frying other fish) has introduced the disingenuously named “Fair Copyright in Research Works Act.” It is awfully hard to understand what the bill says (I am including its text below), but the bottom line is that it would end NIH’s practice of placing the results of NIH funded research on the NIH web site so doctors, other scholars, and the general public can read the papers. Mr. Conyers is carrying the water of scientific publishers which charge extraordinarily high subscription prices which keep going higher as libraries cancel their subscriptions. This is the same practice that has led the Arts and Sciences and Law Faculties at Harvard to adopt “Open Access” rules, by which professors ordinarily retain the right to post copies of their papers on the Harvard open web site.

Why the publishers’ lobbyists are able to put the squeeze on Mr. Conyers I do not know, but would love to.

There is a good, clear explanation of the bill by Robin Peek, writing on Information Today. It goes way beyond the NIH site — it prohibits any other branch of the government from doing something similar.

Here is the text of the bill. The bottom line is 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 any right provided under copyright law.” That is, the NIH can’t ask, in return for providing millions of dollars of research grants, that it get to put the results of the research up on its web site. Madness. But thank goodness some watchdog group is keeping an eye on the implications of gibberish such as that reproduced below.

H. R. 801

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

IN THE HOUSE OF REPRESENTATIVES

February 3, 2009

Mr. CONYERS (for himself, Mr. ISSA, Mr. WEXLER, Mr. FRANKS of Arizona, and Mr. COHEN) introduced the following bill; which was referred to the Committee on the Judiciary


A BILL

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Fair Copyright in Research Works Act’.

SEC. 2. LIMITATIONS ON FEDERAL GOVERNMENT REGARDING EXTRINSIC WORKS.

    (a) In General- Section 201 of title 17, United States Code, is amended by adding at the end the following new subsection:
    `(f) Limitations on the Federal Government-
    • `(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement–
      • `(A) impose or cause the imposition of any term or condition that–
        • `(i) requires the transfer or license to or for a Federal agency of–
          • `(I) any right provided under paragraph (3), (4), or (5) of section 106 in an extrinsic work; or
          • `(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or
        • `(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;
      • `(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or
      • `(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.
    • Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.
    • `(2) CONSTRUCTION-
      • `(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.
      • `(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.
    • `(3) DEFINITIONS- In this subsection:
      • `(A) EXTRINSIC WORK- The term `extrinsic work’ means any work, other than a work of the United States Government, that is based upon, derived from, or related 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.
      • `(B) FEDERAL AGENCY- The term `Federal agency’ means any department, agency, or instrumentality of the United States Government.
      • `(C) FUNDING AGREEMENT- The term `funding agreement’ means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.’.
    (b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.
    (c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register’s views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.
    (d) Definitions- In this section:
    • (1) EXTRINSIC WORK; FEDERAL AGENCY; FUNDING AGREEMENT- The terms `extrinsic work’, `Federal agency’, and `funding agreement’ have the meanings given those terms in section 201(f)(3) of title 17, United States Code, as added by subsection (a) of this section.
    • (2) APPROPRIATE CONGRESSIONAL COMMITTEES- The term `appropriate congressional committees’ means the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives and the Committee on the Judiciary and the Committee on Appropriations of the Senate.

3 Responses to “Watching the Lawmakers”

  1. Steven Salzberg Says:

    hi Harry – excellent post – we need to remain vigilent against stealth efforts like this. Unfortunately, Conyers has introduced this in the past – he seems to be in the pocket of for-profit publishers, who of course want to pad their own pockets and don’t care about the availability of research results to the general public. It was a major victory – a long time in the making – last year when Congress finally passed the rule requiring NIH-funded work to be deposited freely in PubMed Central.

    I’m hoping that NSF and other funding agencies will follow suit. But meanwhile there are scientists already scrambling to block this effort by Conyers and the publishers to once again give copyright to private, for-profit publishers who already “own” research results that we paid billions of dollars to develop.

    Anyone who cares enough about this issue should write to your Congressman/woman. It’s easy to do via the House/Senate websites.
    -Steven

  2. Blown to Bits » Blog Archive » MIT Adopts an Open-Access Policy Says:

    [...] blogged last month about the execrable “Fair Copyright in Research Act” that was introduced by Rep. [...]

  3. CARHU - avoin julkaisuarkisto » MIT hyv?§ksyi koko yliopistoa kattavan OpenAccess mandaatin Says:

    [...] k?§yd?§?§n parhaillaan kovaa k?§denv?§?§nt???§ rebublikaanien tekem?§st?§¬† lakiehdotuksesta ‚ÄúFair Copyright in Research Act‚Äù , jolla pyrit?§?§n kielt?§m?§?§n USA:n Kansallisen terveysinstituutin (National Institute of [...]