Re: NIH Public Access Mandate Passes Senate

["Kevin L. Smith" <kevin.l.smith@duke.edu>]

I am not sure any of these questions are really relevant to a 
discussion of the NIH public access mandate, but I am certainly 
willing to offer my answers to them from the perspective of a 
supporter of that policy.

1.  An author should have ownership rights in their own work, in 
my opinion.  I also recognize that the unique nature of 
intellectual property means that those rights have to be subject 
to limitations and exceptions in the public interest.  Every 
copyright law in the world, and all of the international 
treaties, recognize and allow for such limitations and 
exceptions, so this is not a radical proposition.  In any case, 
the NIH policy is not a threat or challenge to copyright 
ownership.  In fact, the explicit language, which was included in 
Ray English's post, requires that the mandate be implemented in a 
way consistent with an author's ownership of copyright.

     All that the NIH mandate requires is that authors give to 
the NIH a non-exclusive right to distribute their work no later 
than one year after it is published.  This demand is a much more 
modest limitation on authorial rights than is the complete 
transfer of copyright still demanded by many publishers as a 
precondition of publication.  There is no evidence that this 
delayed and non-exclusive license would harm an author's ability 
to charge for her work, although that part of the copyright has 
little application in the world of academic authorship.  On the 
other hand, there is evidence that public access as soon as 
possible will benefit an author's reputation, which is the real 
value academic authors are able to extract from their copyright 
ownership.

2. I also support an author's right to transfer their rights by 
contract; I spend a good deal of my time advising academic 
authors about how to do that in a thoughtful manner that benefits 
them, not just the other party to the transfer.  Again, the NIH 
policy will not impair the ability to do this, it will simply 
make such contracts subject to the non-exclusive license 
described above.  Governments often put restrictions and 
requirements on the contents of contracts; it would be absurd to 
claim that the Uniform Commercial code has seriously impeded a 
manufacturer's ability to sell his goods, even though contracts 
for sale are much more heavily regulated than a publication 
contract is, even after the NIH mandate.

     Remember that deposit in PubMed Central will not be required 
until one year after publication, so there is lots of room to 
negotiate the exact terms by which that non-exclusive license 
will be implemented.  I will certainly advise authors to 
negotiate for earlier deposit, since it will be to their benefit 
to do so.

3.  It seems to me that academic work should not be work for 
hire, although I recognize the strong legal basis on which some 
universities claim that it is.  My preference is for clear 
policies that leave academic ownership of copyright in the 
authors' hands.  But again, the NIH policy has nothing to do with 
work for hire; it certainly does not involve any claim that 
funding of research makes a work a work made for hire.  Such a 
claim would be insupportable under our current definition of work 
for hire.

     When something is a work for hire, the ownership of the 
copyrights vests immediately with the employer.  In contrast, the 
NIH is only requiring, again, a non-exclusive license to 
distribute which will not have to come into being until well more 
than a year after the copyright vests in the author.

4.  Given the reply to number 3, the scope of a university's work 
for hire claim is really not relevant.  But I would note that 
many academics are not uncomfortable with a work for hire claim 
over patentable inventions, recognizing, as they do, that 
university resources are much more involved in such creations and 
that the assistance of the university is needed to pursue the 
complex and expensive process of obtaining a patent.  Copyright 
protection is very different in its origination and its terms, so 
it is quite rightly treated differently.

These responses have helped me clarify for myself why I believe 
that the real threat to authors' copyrights is not the NIH public 
access policy, but the outdated approach to publishing that tries 
to build an exclusive market around a non-competitive good.

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
Durham, NC  27708
919-668-4451
kevin.l.smith@duke.edu

-----owner-liblicense-l@lists.yale.edu wrote: -----

From: "Joseph J. Esposito" <espositoj@gmail.com>
Sent by: owner-liblicense-l@lists.yale.edu
Date: 10/26/2007 07:30PM
Subject: NIH Public Access Mandate Passes Senate

I can't speak to the bill's expectations regarding a veto, but I
am troubled that none of the questions that are at the center of
this discussion (center as defined by yours truly) have come up
anywhere that I have seen.  So, my list of questions:

1.  Do you believe an author should have the right to ownership
of his or her own work?  That right would include the ability to
charge for access if anyone is interested in participating in a
market.  Or should an author (at least of scholarly materials)
have no presumption that he or she owns his written work?

2.  If you are comfortable with #1 (that is, you support an
author's choice to assert traditional copyright), do you believe
an author should be able to transfer that right to another
entity, whether a publisher or any other institution?  Does an
author have the right to enter into a contract concerning his
copyrights?

3.  Most academic authors do their work while being compensated
by others--a university, for example, or a grant-giving body.
Should that fact alone (being paid to write up research) be
sufficient reason to assert that the copyrights belong to the
funding body?  In effect, is an academic author's writing a work
for hire under the copyright law?  (A corporate employee who
writes materials or software or whatever does so as work for
hire.)

4.  If you take the position in #3, should the work-for-hire
status extend to other intellectual property created while in the
employ of a university? Patents?  Textbooks?  If textbooks (which
in some instances literally provide hundreds of thousands of
dollars in royalties to authors who teach at universities) are to
be covered by work-for-hire, how will this policy be introduced
to faculty?  Also, how would you handle related activity such as
consulting?  Is this all work for hire?

The principle that sits behind all these questions is that of
authors' rights.  The open access movement is all about readers'
rights, but should an author have the right to own the fruits of
his own labor and the right to contract for the sale of that
work?

Incidentally, while I personally lean toward points ##1 and 2,
the case for #3 is not unreasonable.  I simply can't square it
with #4.  Someone else may have the privilege of telling the
faculty of the Stanford Business School that they have to turn
over their consulting income (including stock options) to the
university.

Best,

Joe Esposito