Re-introduction of the bill to kill the NIH policy
SPARC Open Access Newsletter, issue #131
March 2, 2009
by Peter SuberThe Conyers bill is back (or baaaack). This is the bill to repeal the OA policy at the NIH and block similar policies at all other federal agencies. Its sponsors named it the Fair Copyright in Research Works Act, but the bill is to fair copyright what the Patriot Act was to patriotism.
Rep. John Conyers (D-MI) first introduced it late in the previous session of Congress, September 9, 2008, and it never came up for a vote. But he re-introduced it early in the new session, February 3, 2009. It has been referred to the House Judiciary Committee, where Conyers is Chairman. The Judiciary Committee does not specialize in science, science policy, or science funding, but copyright.
The language of the new bill (HR 801) is the same as the language of the old bill (HR 6845), and the rhetoric of the publishing lobby in support of it is also the same. Hence, these analyses from the first time around still apply:
The SPARC memorandum showing that the NIH policy does not affect US copyright law, July 2008
http://www.arl.org/sparc/bm~doc/nihpolicy_copyright_july2008.pdf
The open letter from 46 law professors objecting to "serious misstatements relating to copyright law" in the publisher arguments for the bill and against the NIH policy, September 8, 2008
https://mx2.arl.org/Lists/SPARC-OAForum/Message/4592.html
The open letter from 33 US Nobel laureates in science defending the NIH policy against the Conyers bill, September 9, 2008
https://mx2.arl.org/Lists/SPARC-OAForum/Message/4572.html
My own analysis of the bill and point-by-point rebuttal to the arguments of the publishing lobby, October 2, 2008
http://www.earlham.edu/~peters/fos/newsletter/10-02-08.htm#nih
If the bill is the same, then what's new this time around? Here are six ways in which the circumstances have changed since last September.
(1) Key leadership slots are now vacant.
Elias Zerhouni stepped down as the Director of the NIH in October 2008 and has not yet been replaced. The Obama administration hasn't even named a nominee. Zerhouni was a strong defender of the NIH policy who knew the publisher objections well and answered them forcefully.
http://www.earlham.edu/~peters/fos/2008/09/zerhouni-will-step-down-from-nih-next.html
The top spot at the US Department Health and Human Services (HHS), where the NIH resides, is also vacant. President Obama had nominated Tom Daschle, a former Senator from South Dakota (1987-2005) and former Senate majority leader (2001-2003). But Dashle withdrew his name early last month when the public learned that he didn't pay $140,000 in personal income tax until after Obama nominated him.
http://en.wikipedia.org/wiki/Tom_Daschle
http://www.earlham.edu/~peters/fos/2009/02/obama-secretary-of-hhs-won-be-tom.html
Two days ago, Obama nominated Kansas Governor Kathleen Sebelius to be the new Secretary of HHS.
http://en.wikipedia.org/wiki/Kathleen_Sebelius
http://www.earlham.edu/~peters/fos/2009/02/obama-nominates-sebelius-to-be.html
Like all the previous Secretaries of HHS, Sebelius would take office with no public track record for or against OA to research. Like Obama himself, however, Sebelius is a strong supporter of open government. In Kansas, she signed government transparency bills in 2007 and 2008.
http://www.i2i.org/main/article.php?article_id=1548
The vacancy at the top of HHS will continue until she's confirmed by the Senate, which could be within a week. We won't have a new Director of NIH until we have a new Secretary of HHS, and the campaign against the Conyers bill will be not be as strong or coordinated as it could be until we have both. The agency and the department both support the OA policy, but are handicapped by the lack of Senate-confirmed leaders. Even after both positions are filled, the new leaders will need to appoint staffers, come up to speed on pending issues and deferred work, learn where the paperclips are located, and start addressing an overload of urgent national priorities, before they can give any attention to the NIH policy and Conyers bill.
Clearly Conyers and the publishing lobby know this. The leadership vacuum works in their favor and Conyers re-introduced his bill the day Dashle withdrew his name.
If the bill passes, you can blame the special interest lobby led by the Association of American Publishers, the DC Principles Coalition, and the Copyright Alliance. But if the vote is close and it comes before Sebelius is confirmed or while she's still getting her sea legs, then you can also blame Tom Daschle for dodging his income taxes and the Obama team for failing to catch it or take it seriously before nominating him.
(2) There has now been a hearing on the bill.
The Subcommittee on Courts, the Internet, and Intellectual Property, a subcommittee of Conyers' fiefdom, the House Judiciary Committee, held a hearing on the bill shortly after it was first introduced, September 11, 2008.
http://judiciary.house.gov/hearings/hear_090911_1.html
After the hearing it became clear that many members of the Judiciary Committee had been operating on false assumptions about academic publishing and the NIH policy. The hearing itself corrected many of these and to that extent helped or should have helped the NIH policy. For example, some members didn't realize that journals don't pay authors or peer reviewers for their work. Others didn't know that the NIH paid about $100 million per year directly to journals to support their publishing costs, or about 30 times more than the cost of implementing the public access policy. Others didn't appreciate just how many other countries have already adopted OA mandates, some stronger than the NIH policy, and that none of these policies has run afoul of international IP treaties like the Berne Convention or TRIPS. Others didn't realize that the permissible embargo under the NIH policy (12 months) was twice as long as the embargoes allowed by OA policies at other medical research funders around the world (which all cap their embargoes at six months). Others assumed that the NIH policy harmed publishers, but found that publishers were unable to point to any evidence of harm.
However, Conyers re-introduced his bill without modifications, as if the September hearing had produced no reasons to revise or drop it. Even if he were rushing to take advantage of the leadership vacuum at NIH and HHS, he had six months to modify the bill after the hearing and before he re-introduced it.
Clearly Conyers still wants to overturn the NIH policy. But Mike Carroll, a law professor at American University, pointed out last year that the bill is far from surgical and would also repeal large chunks of federal procurement law that have nothing to do with research or publishing. Conyers didn't revise the bill to steer clear of those problems either. The September hearing focused on the intended damage, to the NIH OA policy, but the Judiciary Committee still has not heard from any other federal agencies on the collateral damage to their procurement policies.
See Mike Carroll on the bill's consequences for federal procurement law,
http://carrollogos.blogspot.com/2008/09/politics-and-popular-music.html
http://www.earlham.edu/~peters/fos/2008/09/unintended-consequences-of-publishers.html
Conyers continues to complain that his committee, the House Judiciary Committee, should have vetted the 2007 bill directing the NIH to strengthen its OA policy. Instead, the bill was controlled by the House Appropriations Committee and never run by Conyers' committee. (It's relevant that the House Rules Committee and William Patry, former counsel to the House Judiciary Committee, have both said that the NIH policy raised no copyright issues and didn't have to be run by the Judiciary Committee.) Conyers seems more irked by the jurisdictional slight than by the NIH policy. More importantly, he's still fighting the turf battle, two years after the NIH bill was first floated and half a year after mooting the no-consultation question by arranging the September hearing.
By continuing to press the point, he's putting the turf war ahead of the public interest in good policy. Moreover, by introducing an unmodified bill, he's saying that he really didn't need to hear from the parties after all.
In November Conyers consolidated his power by abolishing the subcommittee which held the September hearing.
http://www.earlham.edu/~peters/fos/2008/11/end-of-line-for-house-ip-subcommittee.html
He might have wanted to block Rick Boucher (D-VA), a supporter of copyright balance, from becoming the new chairman of the subcommittee. He might have wanted to bring all the copyright issues formerly heard by the subcommittee before the plenary committee where he himself is chairman. He might have wanted to dilute the voices of the subcommittee members who learned new respect for the NIH policy from the September hearing.
(3) Barack Obama is now President.
This time around, the executive branch is led by Barack Obama, whose commitment to open government is not just campaign rhetoric. On his first full day of office, he took three major steps to open the federal government:
He issued an executive order reversing the Bush directive allowing former presidents to block the public release of their presidential papers.
http://www.whitehouse.gov/the_press_office/Presidential_Records/
He issued a memorandum on the Freedom of Information Act, adopting "a presumption in favor of disclosure" and reversing the presumption used by the Bush administration.
http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/
He issued a directive on Transparency and Open Government, asking all "appropriate executive departments and agencies" to develop open government recommendations within 120 days, after which the Office of Management and Budget will turn them into a binding Open Government Directive.
http://www.whitehouse.gov/the_press_office/Transparency_and_Open_Government/
These were campaign promises. But the Obama team is showing its commitment in many smaller ways as well. For example, WhiteHouse.gov uses CC-BY licenses for third-party content. (First-party or government-produced content is in the public domain.) Even Google Earth is now allowed to show a satellite view of the vice presidential residence, a disclosure previously nixed by Dick Cheney.
http://www.michaelgeist.ca/content/view/3626/125/
http://www.techdigest.tv/2009/01/dick_cheneys_ho.html
The Obama commitment to openness should help us, but it's too early to say whether it will.
A commitment to transparency and open government doesn't translate directly into a commitment to open access. It did for John Cornyn and Joe Lieberman, for example, who support OA for publicly-funded research largely on the basis of a background commitment to open government. Nevertheless, it's possible to combine support for open government with support for copyright maximalism and the content industry. For example, Bill Clinton supported open government, but in 1998 he signed both the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act.
Democratic presidents may be predisposed to support open government and consumer rights, but they tend come to office owing a large debt to Hollywood and the entertainment industry. Barack Obama may support open government even more than Bill Clinton, but he too owes a debt to entertainment goliaths and is repaying it by staffing important jobs in the Justice Department with industry soldiers in the war against file sharing.
For example, Obama's deputy attorney general, the second in command at the Department of Justice, is David Ogden, who successfully defended the Bono Copyright Term Extension Act (against Lawrence Lessig) in Eldred v. Ashcroft. Obama's associate attorney general, or third in command at DOJ, is Tom Perrelli, who recruited RIAA as a client at Jenner and Block, and represented it in MGM v. Grokster. Don Verrilli, another Jenner and Block partner who represented the RIAA, is an associate deputy attorney general. Neil MacBride is the former general counsel to the Business Software Alliance in charge of anti-piracy enforcement, and now another associate deputy attorney general, advising the DOJ on the prosecution of copyright cases. David Kris is a former VP at Time Warner and now the assistant attorney general in charge of the DOJ National Security Division. And don't forget that Obama's VP, Joe Biden, is a strong supporter of the RIAA.
For more detail on Obama's copyright policy appointees, see these reports by Declan McCullagh and Alan Wexelblat.
http://news.cnet.com/8301-13578_3-10133425-38.html
http://news.cnet.com/8301-13578_3-10157381-38.html
http://copyfight.corante.com/archives/2009/02/06/riaa_takes_over_doj.php
Last month Obama's US Patent and Trademark Office (USPTO) took a group of US officials to Geneva for a series of meetings on strengthening IP law and enforcement. Among those invited were Christal Sheppard, legislative counsel for Rep. John Conyers. Offsetting the deference to Conyers somewhat was the presence of Erik Stallman, legislative counsel for Rep. Zoe Lofgren, a proponent of copyright balance.
For details on the USPTO delegation to Geneva, see William New's report for IP Watch.
http://www.ip-watch.org/weblog/2009/02/19/us-congressional-uspto-officials-see-geneva-policymaking-up-close/
But just as a commitment to open government doesn't entail a commitment to OA, neither does copyright maximalism for entertainment entail copyright maximalism, or even opposition to OA, for science and scholarship. As I put it in SOAN last November,
http://www.earlham.edu/~peters/fos/newsletter/11-02-08.htm#openletter
[The trick is to] see how scientific research differs from music, movies, and novels. Science thrives when we lift restrictions on access and use, and suffers when we tighten them, the opposite of royalty-driven intellectual property. Scholarly journals don't pay authors, who can therefore consent to OA without losing revenue. Universities pay scholars in part to free them from the market and free them to publish what they find to be true and important, even if only handful of people in the whole world care to read it or are in a position to understand it. Universities reward scholars for their research publications, creating incentives to publish [which are] entirely unrelated to the market value of their publications.
Research articles differ sharply from other categories of copyrighted content, [1] where authors are paid by publishers, [2] where author rewards are proportional to sales, [3] where the temporary monopoly of copyright is an essential incentive for author creativity, and [4] where the publisher's interest in limiting circulation to paying customers also serves the author's interest.
To advance the interests of the larger copyright industry as if academic publishing were just like music, movies, and novels would have the perverse effect of locking up knowledge, reducing its impact, and slowing research. OA, by contrast, accelerates research and amplifies its impact, not only for researchers but for the entire economy.
In short, copyright maximalism for entertainment needn't rule out OA for research. But is there evidence that the Obama team sees it that way and plans to pursue both? Yes.
Obama has made as many OA-friendly appointments in science policy as OA-unfriendly appointments in copyright policy. The most important is Harold Varmus, who is now co-chair of the President's Council of Advisors on Science and Technology (PCAST). Varmus is the co-founder of the Public Library of Science and a crusading supporter of OA. Of course he's also a Nobel laureate (physiology or medicine, 1989), former director of the U.S. National Institutes of Health (1993-1999), and currently President of Memorial Sloan-Kettering Cancer Center.
The other co-chair of PCAST is Eric Lander, who has a strong track record in support of OA as a lead researcher in the Human Genome Project and the founding director of the Broad Institute. Obama's Secretary of Energy is Steven Chu, a Nobel laureate (physics, 1997) with 11 OA papers in arXiv and 14 in PubMed Central. Obama's nominee to head the National Oceanic and Atmospheric Administration (NOAA) is Jane Lubchenco, who defended OA in a 2003 article. His nominee to be Solicitor General is Elena Kagan, the Dean of Harvard Law School and a supporter of its May 2008 OA mandate.
But here's what worries me. Even though the NIH policy does not violate copyright, the publishing lobby has decided to push the line that it does. Some members of the Judiciary Committee have decided to play along and use copyright as a pretext to review the NIH policy, even though their proposal to amend copyright law presupposes that the NIH policy is in fact consistent with current law. If the question were left to the science policy appointees in the executive branch, the bill would die and the NIH policy would live. But the question will be decided first by a copyright-oriented committee in the legislative branch, which shows little sign of wishing to protect or promote science while it makes the world safe for entertainment. Obama's copyright policy appointees in the executive branch may not see or may not care that the NIH policy is already lawful and that the fate of science needn't be tied to the fate of entertainment.
Obama could block the bill by refusing to sign it. But if the question arose in that form, he might receive conflicting advice from his own appointees. Moreover, the question may not arise in that form. The language of the Conyers bill might be inserted into a must-pass bill, denying him the chance to give science and entertainment what he believes each is due.
Because the NIH policy is entirely consistent with copyright law, it needn't alarm Obama's copyright policy appointees. But we could have said the same thing about the Judiciary Committee. Obama's copyright policy appointees may oppose the NIH policy for the same reasons that some members of the Judiciary Committee do: because they are predisposed to favor content publishers or because their knowledge of the NIH policy is limited to what the publishing lobby has told them. The dual risk of bias and misunderstanding is real. As some members of the Judiciary Committee are already proving, copyright expertise is not enough if one hasn't troubled oneself to understand the NIH policy, its rationale and benefits, its concessions to publishers, and its simple, elegant, and battle-tested method for avoiding infringement.
Much of my argument here presupposes that the NIH policy does not, in fact, violate copyright law. I made that case at length when the Conyers bill was first introduced, and the only reason I don't recap it here is to minimize duplication. If you have any doubts, please read my earlier analysis.
http://www.earlham.edu/~peters/fos/newsletter/10-02-08.htm#nih
(4) The US, and the world, are now in profound economic collapse.
The economic crisis changes the landscape for the Conyers bill because it strengthens the case for OA, especially OA for publicly-funded research.
Both the NSF and NIH received extra funds --$3 billion and $10.4 billion respectively-- under the economic stimulus package President Obama signed on February 17. While the new funds will support precious new research, the economic crisis heightens our responsibility to maximize the *return* on that investment as well. That's where OA comes in. It maximizes the return on our research investment by maximizing the reach and usefulness of research. Moreover, as John Houghton's many studies have shown, OA is itself a profound economic stimulus, within and well beyond the research sector itself.
Conducting more research is only one way to amplify the benefits of research. The other way, even more affordable than the first and even more compelling in hard times, is to ensure that the research we do conduct reaches all who could make use of it.
If you're reading this, you're probably very familiar with the background reasons to support OA for publicly-funded research, in good times or bad. But there are also special reasons to push harder in hard times. These special reasons to beyond the responsibility to maximize the return on our investment and beyond the economic activity OA stimulates. As library budgets shrink, toll access is harder to afford, even if prices remain steady. If it weren't for OA, access to research would decline apace. Throw in rising journal prices and we face damaging access cuts even greater than the damaging budget cuts. Loss of access harms researchers first, but it also harms all of us who depend on research --for everything from better batteries, monitors, and processors to health care, green energy, and public safety.
In short, the Conyers bill does more harm the deeper we slide into recession. Members of Congress serious about science and serious about economic recovery --admittedly not the full membership-- will take that into account.
The message from voters to the Judiciary Committee should be: In any other year we could quarrel about whether to make government science agencies serve publishers before they serve the public. But this year think about the economy. This is not the year to make US taxpayers pay a second fee for access to the research they've already funded. This is not the year to make publicly-funded research less accessible and less useful. This is not the year to slow down medical research, reduce the benefits of research, and reduce the economic activity stimulated by research.
For other ways to make the argument that we need OA as an economic stimulus, on top of the background arguments for OA, see:
My own Open letter to the next President of the United States, SOAN, November 2, 2008.
http://www.earlham.edu/~peters/fos/newsletter/11-02-08.htm#openletter
Charles Lowry and Prue Adler, Establish a Universal, Open Library or Digital Data Commons, ARL, January 2009.
http://www.arl.org/bm~doc/ibopenlibpsa2.pdf
http://www.earlham.edu/~peters/fos/2009/01/oa-stimulus-for-hard-times.html
Michael Geist, Fire Up the Digital Jobs Machine, The Tyee, January 20, 2009.
http://thetyee.ca/Mediacheck/2009/01/20/DigitalJobs/
http://www.earlham.edu/~peters/fos/2009/01/more-on-oa-for-economic-stimulus.html
Open Access Working Group, Public Access to the Published Results of Publicly Funded Research Will Benefit the Economy, Science, and Health, February 2009.
http://www.arl.org/bm~doc/PATransitionOAWG.pdf
http://www.earlham.edu/~peters/fos/2009/01/oa-working-group-proposes-oa-mandate-to.html
Charles Lowry, Let's Spur Recovery by Investing in Information, Chronicle of Higher Education, February 6, 2009
http://chronicle.com/weekly/v55/i22/22b00401.htm
http://www.earlham.edu/~peters/fos/2009/02/more-on-oa-projects-for-economic.html
John Houghton's largest and latest study of the economic impact of OA, with eight co-authors, is Economic implications of alternative scholarly publishing models: Exploring the costs and benefits, JISC, January 2009.
http://www.jisc.ac.uk/publications/publications/economicpublishingmodelsfinalreport
http://www.earlham.edu/~peters/fos/2009/01/major-new-report-on-economic.html
Houghton's many earlier studies on the economic impact of OA
http://ur1.ca/209k
(5) In the period between the introduction of last year's bill and this year's, at least 10 funding agencies around the world adopted OA mandates, more than one per month.
On the same day as the September hearing on the original bill, the Wellcome Trust and the DBT India alliance launched a joint biomedical research program operating under an OA mandate. Later that month, both the MacArthur Foundation and the Moore Foundation adopted OA mandates. In October, the Fonds de la recherche en santé du Québec adopted an OA mandate. (In the same month, btw, the European Commissioner for Science and Research, Janez Potocnik, told the Director of SURF, Wim Liebrand, that the EC "will encourage *all* recipients of EU subsidies to make published scientific/scholarly articles available to the public".) In November, both Autism Speaks and the Norwegian Knowledge Centre for the Health Services adopted OA mandates. In December, the UK Engineering & Physical Sciences Research Council adopted an OA mandate, making it the seventh out of the seven Research Councils UK to do so. In February, the Norwegian Research Council and the Spanish principality of Asturias adopted OA mandates, and the OA mandate at the Science Foundation Ireland took effect. Also in February, the Irish Research Council for Humanities and Social Sciences revealed that it is considering an OA mandate, India's Council of Scientific & Industrial Research asked each of its 40+ laboratories adopt an OA mandate, and Spain's Ministry of Science and Innovation proposed legislation containing an OA mandate for publicly-funded research.
Two OA mandates adopted before the Conyers hearing were only revealed after the hearing: one at Germany's Fraunhofer-Gesellschaft and one at National Cancer Institute of Canada (now part of the Canadian Cancer Society).
Universities followed the same path for the same reasons. Since the Conyers hearing, OA mandates were adopted at Switzerland's ETH Zürich, the University of Glasgow, and Napier University (now called Edinburgh Napier University). The OA mandate at the University of Liege moved out of its experimental phase, Boston University and the University of St. Gallen adopted university-wide OA policies, and Texas A&M is now considering one. Temple University adopted an OA mandate for doctoral dissertations.
Clearly, the US doesn't have to follow the trail blazed by the rest of the world. However, if the NIH had adopted an OA mandate in July 2004, when the House Appropriations Committee first asked for one, it would have been the world's first funding agency, public or private, to do so. When it finally adopted the mandatory version of its policy in January 2008, it was 21st.
Because the NIH is the world's largest funder of non-classified research, the publishing lobby has tactical reasons to focus on it even while the rest of the world makes the transition to OA. But policy-makers should notice that the worldwide default is shifting. Deference to special interests only puts the US behind: behind the progress of its peers and trading partners, and even more importantly, behind its own self-interest in seizing the opportunities of the internet to lower costs and widen distribution at the same time. Members of Congress must ask themselves a stark question: Is US-funded research less worth wide dissemination than research funded elsewhere?
(6) The clock is still ticking.
Finally, it's been more than half a year since Coyers first introduced his bill, and during that time the NIH has continued to apply its OA policy and continued to build its compliance rate. I argued in December that this fact alone changes the politics of the policy. The longer the policy is in force, the more researchers and patients benefit from it, the more publishers accommodate it, and the more Congress and the public accept it as the norm for publicly-funded research in the age of the internet. Most publishers have already accommodated it, a fact which the publishing lobby would like us to forget. Many publishers have gone much further, allowing deposit of the published edition in PubMed Central (as opposed to the final version of the author's peer-reviewed manuscript), allowing deposit of all their articles (as opposed to those based on NIH-funded research), or allowing OA earlier than the permitted 12 month embargo. Publishers who hate the idea of accommodating it face the ticking clock, not just the many supporters of OA. They may have the money to lobby against the NIH policy every year, forever, but the question is becoming moot as the policy becomes the new normal and even its opponents revise their internal policies to live with it.
http://www.earlham.edu/~peters/fos/newsletter/12-02-08.htm#predictions
This explains the desperation of the publishing lobby. It may even predict that opposition will grow in ferocity before it subsides. But it also predicts that it will subside, at least if we can hold on and protect the NIH policy until the new normal grows deeper roots.
.....
After analyzing the bill in the October 2008 SOAN, I listed eight facts I wanted members of Congress to understand if they ever had to cast a vote on the bill. Here are the eight once more, slightly restated.
http://www.earlham.edu/~peters/fos/newsletter/10-02-08.htm#nih
(1) The NIH policy does not infringe copyrights. OA through PubMed Central under the NIH policy is expressly authorized by the copyright holders, namely, by the authors before they transfer rights to publishers.
(2) The policy does not violate our IP treaties. The treaties would only come into play if Congress had amended the Copyright Act in order to enact the NIH policy, which it did not do. The NIH policy doesn't change US law, only the contract between the agency and its grantees. (It is the Conyers bill, ironically, which would amend the Copyright Act.)
(3) The policy regulates grantees, not publishers. It doesn't require publishers to provide OA, to permit OA, to relinquish anything they possess, to relinquish anything they acquire, or to take any step they are unwilling to take. It merely requires grantees to ask certain terms from publishers.
(4) There is no surrender, commandeering, or expropriation of publisher property here. There's a business proposition which publishers remain free to take or leave. The only taking here is that essentially all publishers are taking the offer from NIH-funded authors.
(5) NIH-funded authors who comply with the new policy do not transfer full copyright to publishers. Instead, they retain a non-exclusive right to authorize OA through PMC. Consequently, publishers do not acquire full copyright in articles arising from NIH-funded research. At most, they acquire all but the right the author has retained. Publisher arguments that refer, without qualification, to "their copyrighted articles" are already sloppy and deceptive.
(6) Publishers who raise copyright objections to the policy fail to distinguish between (a) acquiring fewer rights from authors than they would like and (b) diminishing protection for the rights they do acquire. If they have a grievance, it's the former, not the latter. However, if one of these is inconsistent with copyright law, it's the latter, not the former.
(7) The NIH "mandate" is a mandatory condition in a voluntary funding contract, exactly as consistent with copyright law as the mandatory conditions in voluntary publishing contracts.
(8) The mission of the NIH is to advance the public interest in medical research and health care, not the private interest of the publishing industry. Becauses the Judiciary Committee can set policy, its mission is not as clear-cut. But insofar as the committee bears the responsibility to set policy on copyright, shouldn't its mission be less about creating artificial scarcity to publicly-funded research than promoting the progress of science and useful arts?
.....
* It's urgent for US citizens to contact their representatives. It doesn't matter whether your representative sits on the Judiciary Committee. If the bill ever leaves the committee, the full House of Representatives will vote on it and must be aware of the damage it would cause.
The message is two-fold: support for the NIH policy and opposition to the Conyers bill (or HR 801, Fair Copyright in Research Works Act). Because the language repealing the NIH policy may appear in a different bill, urge your representative to oppose HR 801 and any similar measure to overturn the NIH policy. Your message will be more persuasive if you can explain why the NIH policy matters to you, your work, or your organization. Be specific and be personal. Speak for yourself, but if you can, get your institution to send a letter as well.
If you have extra time, send the same message to every member of the House Judiciary Committee.
At the moment, the bill has only been introduced in the House, not the Senate. But keep a copy of your message in case you have to send it to your Senators later.
Finally, spread the word. Get your colleagues to write to their representatives as well.
House Judiciary Committee
http://judiciary.house.gov/
Members of the House Judiciary Committee
http://judiciary.house.gov/about/members.html
Contact info on each member of the Judiciary Committee (thanks to Charles Bailey)
http://digital-scholarship.org/digitalkoans/2009/02/15/support-open-access-contact-house-judiciary-committee-members-to-save-the-nih-public-access-policy/
Contact info on any member of Congress
http://www.congressmerge.com/onlinedb/powersearch.htm
* Here's the bill itself
H.R. 801, The Fair Copyright in Research Works Act, in THOMAS
http://hdl.loc.gov/loc.uscongress/legislation.111hr801
...in OpenCongress
http://www.opencongress.org/bill/111-h801/show
...in Washington Watch
http://www.washingtonwatch.com/bills/show/111_HR_801.html#toc2
The hearing on last year's version of the the bill conducted by the House Judiciary Committee, Subcommittee on Courts, the Internet, and Intellectual Property, September 11, 2008
http://judiciary.house.gov/hearings/hear_090911_1.html
The video webcast of the hearing
http://judiciary.edgeboss.net/real/judiciary/courts/courts09112008.smi
* Here is some of the news and comment on the re-introduction of the bill (in chronological order).
Conyers Fights NIH Internet Mandate, Tech Daily Dose, February 4, 2009.
http://techdailydose.nationaljournal.com/2009/02/conyers-fights-nih-internet-ma.php
Andrew Albanese, Bill Banning NIH-Like Public Access is Reintroduced in Congress, Library Journal, February 4, 2009.
http://www.libraryjournal.com/article/CA6634646.html?desc=topstory
Andrew Albanese, Copyright Research Bill ReIntroduced, Publishers Weekly, February 4, 2009.
http://www.publishersweekly.com/article/CA6634701.html
Peter Suber, The Conyers bill is back, Open Access News, February 4, 2009.
http://www.earlham.edu/~peters/fos/2009/02/conyers-bill-is-back.html
Mike Carroll, Renewed Attack on Open Access in Congress, Carrollogos, February 4, 2009.
http://carrollogos.blogspot.com/2009/02/renewed-attack-on-open-access-in.html
The Copyright Alliance released a statement supporting the Conyers bill, February 4, 2009.
http://www.copyrightalliance.org/news.php?id=59
http://www.earlham.edu/~peters/fos/2009/02/copyright-alliance-and-aap-welcome-re.html
The Association of American Publishers released a statement supporting the Conyers bill, February 4, 2009.
http://www.publishers.org/main/PressCenter/Archicves/2009_Feb/02_FairCopyright.htm
http://www.earlham.edu/~peters/fos/2009/02/copyright-alliance-and-aap-welcome-re.html
Andrew Albanese, New Wrinkles as Bill Banning NIH-Like Public Access Resurfaces, Library Journal, February 5, 2009.
http://www.libraryjournal.com/article/CA6635227.html?nid=2673&rid=reg_visitor_id&source=title
Elie Dolgin, Anti-open access bill is back, The Scientist, February 5, 2009.
http://www.the-scientist.com/templates/trackable/display/blog.jsp?type=blog&o_url=blog/display/55403&id=55403
Gigi Sohn, Anti-Open Access Bill a Real Head-Scratcher, Public Knowledge, February 5, 2009.
http://www.publicknowledge.org/node/1978
Matt Jones, Bill Against NIH Open-Access Policy Back in House, Genome Web Daily News, February 05, 2009
http://www.genomeweb.com/bill-against-nih-open-access-policy-back-house
Molly Kleinman, The “Fair Copyright in Research Works” Act rears its ugly head again, Molly Kleinman, February 5, 2009.
http://mollykleinman.com/2009/02/05/the-fair-copyright-in-research-works-act-rears-its-ugly-head-again/
John Timmer, Congress may slam door on NIH research open access policy, Ars Technica, February 6, 2009.
http://arstechnica.com/science/news/2009/02/congress-may-slam-door-on-nih-research-open-access-policy.ars
David Bruggeman, Bill Introduced to Roll Back NIH Open Access, Prometheus, February 6th, 2009.
http://sciencepolicy.colorado.edu/prometheus/bill-introduced-to-roll-back-nih-open-access-4938
Lila Guterman, Proposed Law Would Make NIH Less "Open", Science Magazine, February 6, 2009.
http://blogs.sciencemag.org/scienceinsider/2009/02/proposed-law-wo.html
Michael Eisen, Conyers reintroduces bill to kill NIH Public Access Policy, It is NOT Junk, February 6, 2009.
http://www.michaeleisen.org/blog/?p=162
NIH research open access policy threatened, TPM Café, February 7, 2009.
http://tpmcafe.talkingpointsmemo.com/talk/blogs/kgb999/2009/02/nih-research-open-access-polic.php
Jennifer Howard, At Publishers' Conference, the Digital Future Is (Almost) Now, Chronicle of Higher Education, February 9, 2009.
http://chronicle.com/daily/2009/02/11057n.htm
http://www.earlham.edu/~peters/fos/2009/02/publisher-views-of-conyers-bill-at.html
Elie Dolgin, Heather Joseph: Q&A, The Scientist, February 9, 2009.
http://www.the-scientist.com/news/display/55409/
http://www.earlham.edu/~peters/fos/2009/02/heather-joseph-on-conyers-bill.html
Greg Laden, Open Access Under Threat, Greg Laden's Blog, February 9, 2009.
http://newage.org/2009/02/09/open-access-under-threat-greg-ladens-blog/
Stevan Harnad, Protect the NIH Public Access Mandate From the Conyers Copyright Caricature, Open Access Archivangelism, February 9, 2009.
http://openaccess.eprints.org/index.php?/archives/525-Protect-the-NIH-Public-Access-Mandate-From-the-Conyers-Copyright-Caricature.html
Open letter to Rep. John Conyers and the House Judiciary Committee, from the Alliance for Taxpayer Access, February 10, 2009.
http://www.taxpayeraccess.org/docs/HR_801_09-feb.pdf
Tracking a Bill: H.R.801, Repealing Open Access to NIH-funded Science, Congress Matters, February 10, 2009.
http://www.congressmatters.com/story/2009/2/10/143812/732
The Alliance for Taxpayer Access issued a call to action to defend the NIH policy against the Conyers bill.
http://www.taxpayeraccess.org/action/HR801-09-0211.html
http://www.earlham.edu/~peters/fos/2009/02/americans-contact-your-representative.html
Open letter to the House Judiciary Committee from 10 library associations, scientific publishers, public interest groups, February 13, 2009. (The 10 groups are AALL, ALA, ASCB, ACRL, ARL, GWLA, PK, PLoS, SPARC, and SLA.)
http://www.wo.ala.org/districtdispatch/wp-content/uploads/2009/02/oawg_to_judiciary-09-feb-_3_x.pdf
http://www.earlham.edu/~peters/fos/2009/02/comments-on-conyers-bill-4.html
Open letter to Rep. John Conyers and the House Judiciary Committee, NetCoalition, February 13, 2009.
http://www.taxpayeraccess.org/NCHR801%20Letter.pdf
NYSHEI Opposes the “Fair Copyright in Research Works” Act, New York State Higher Education Initiative, February 13, 2009.
http://nyshei.org/blog/index.php/2009/02/nyshei-opposes-the-fair-copyright-in-research-works-act/
http://www.earlham.edu/~peters/fos/2009/02/nyshei-opposes-conyers-bill.html
Charles Bailey, Urgent Call to Action: Conyers Bill Opposing NIH Open Access Policy May Soon Come to House Vote, DigitalKoans, February 13, 2009.
http://digital-scholarship.org/digitalkoans/2009/02/13/urgent-call-to-action-conyers-bill-opposing-nih-open-access-policy-may-soon-come-to-house-vote/
--Also see Charles' follow-up on February 15, 2009.
http://digital-scholarship.org/digitalkoans/2009/02/15/support-open-access-contact-house-judiciary-committee-members-to-save-the-nih-public-access-policy/
Corey Williams, Conyers Introduces H.R. 801, “The Fair Copyright in Research Works Act”, District Dispatch, February 13, 2009.
http://www.wo.ala.org/districtdispatch/?p=1945
Katie Newman, NIH Public Access Policy in Jeopardy, BioBlog, February 13, 2009.
http://www.library.uiuc.edu/blog/bioblog/archives/2009/02/nih_public_acce_1.html
New Bill Would Repeal NIH Open Access Policy, a discussion thread at Slashdot, February 14, 2009.
http://news.slashdot.org/article.pl?sid=09/02/14/1319259
Charles Bailey, Urgent Call to Action: Conyers Bill Opposing NIH Open Access Policy May Soon Come to House Vote, DigitalKoans, February 14, 2009.
http://digital-scholarship.org/digitalkoans/2009/02/13/urgent-call-to-action-conyers-bill-opposing-nih-open-access-policy-may-soon-come-to-house-vote/
xgy2, Conyers to end NIH open access, Daily Kos, February 14, 2009.
http://www.dailykos.com/story/2009/2/14/123327/723/153/697519
John Hawks, Congress to repeal open access science provisions? John Hawks weblog, February 14, 2009.
http://johnhawks.net/weblog/topics/metascience/open-access/congress-takes-up-open-access-rollback-2009.html
Fernando Pereira, The Conyers bill is back, Earning My Turns, February 15, 2009.
http://earningmyturns.blogspot.com/2009/02/conyers-bill-is-back.html
Peter Murray, H.R.801 Threatens Open Access Requirement for Gov’t Funded Research, Disruptive Library Technology Jester, February 15, 2009.
http://dltj.org/article/hr801/
Nathan Georgette, Stand for Open Access, Oppose HR801, Open Access Blog, February 16, 2009.
http://openaccessblog.com/2009/02/stand-for-open-access-oppose-hr801.html
Steve Lindholm, Scientific publishers get a law introduced to end free publication of govt-funded research, Boing Boing, February 16, 2009.
http://www.boingboing.net/2009/02/16/scientific-publisher.html
John Baez, Banning Open Access, The n-Category Café, February 16, 2009.
http://golem.ph.utexas.edu/category/2009/02/banning_open_access.html#more
The Bubble In Academic Research, The Last Psychiatrist, February 17, 2009.
http://thelastpsychiatrist.com/2009/02/the_bubble_in_academic_researc.html
David Weinberger, Open Access: Half step forward, big possible step back, Everything is Miscellaneous, February 17, 2009.
http://www.everythingismiscellaneous.com/2009/02/17/open-access-half-step-forward-big-possible-step-back/
Andrew Albanese, In New Letter, Library Associations Voice Strong Opposition to Anti-NIH Bill, Library Journal, February 17, 2009.
http://www.libraryjournal.com/article/CA6638106.html?nid=2673&rid=reg_visitor_id&source=title
Nathan Georgette, Following the money on HR801, Open Access Blog, February 18, 2009.
http://openaccessblog.com/2009/02/following-money-on-hr801.html
Open Access and the NIH, Oxadox, undated but c. February 18, 2009.
http://oxadox.com/article/menhealth/2009-02-18/88776.html
T. Scott Plutchak, What I Said About Public Access at the ER&L Conference, T. Scott, February 18, 2009.
http://tscott.typepad.com/tsp/2009/02/what-i-said-about-public-access-at-the-erl-conference.html
The American Library Association created an action alert to help Americans contact their representative to support the NIH policy and oppose the Conyers bill (if the representative is a member of the House Judiciary Committee), February 19, 2009.
http://capwiz.com/ala/issues/alert/?alertid=12715186
http://www.earlham.edu/~peters/fos/2009/02/americans-contact-house-judiciary.html
Open letter to the House Judiciary Committee, supporting the NIH policy and opposing the Conyers bill, from the Association of American Universities (AAU) and the National Association of State Universities and Land-Grant Colleges (NASULGC), February 19, 2009.
http://www.taxpayeraccess.org/docs/aauHR801.pdf
http://www.earlham.edu/~peters/fos/2009/03/major-university-associations-back-nih.html
Nathan Georgette, Why is HR801 referred to the Judiciary Committee, when there's a perfectly good one on Science and Technology? Open Access Blog, February 19, 2009.
http://openaccessblog.com/2009/02/why-is-hr801-referred-to-judiciary.html
Proposed legislation would be blow to public access, a public statement from the Association of Health Care Journalists, February 19, 2009.
http://www.healthjournalism.org/about-news-detail.php?id=65
Open-access supporters oppose US bill, Research Information, February 19, 2009.
http://www.researchinformation.info/news/news_story.php?news_id=438
House Rehashes Bill Blocking Access to Publicly Funded Research, American Libraries, February 23, 2009.
http://www.ala.org/ala/alonline/currentnews/newsarchive/2009/February2009/antinihpolicybill.cfm
Library Associations Oppose Repealing Public Access Bill, Urge Action, American Library Association (in Information Today), February 23, 2009.
http://newsbreaks.infotoday.com/wndReader.asp?ArticleId=52728
James Boyle, Misunderestimating open science, Financial Times, February 24, 2009.
http://www.ft.com/cms/s/0/7a110fa6-0219-11de-8199-000077b07658.html?nclick_check=1
http://www.earlham.edu/~peters/fos/2009/02/conyers-bill-shows-how-far-we-have-to.html
Richard Esguerra, "Open Access" Policies Threatened by Copyright Bill, Electronic Frontier Foundation, February 25, 2009.
http://www.eff.org/deeplinks/2009/02/open-access-policies-threatened-copyright-bill
Esther Wojcicki, Bill Before Congress May Close Medical Research to Average American, Huffington Post, February 25, 2009.
http://www.huffingtonpost.com/esther-wojcicki/bill-before-congress-may_b_169793.html
Key Points: How the Fair Copyright in Research Works Act Protects Copyright and Advances Science and Scientific Publishing, from the Processional Scholarly Publishing division of the Association of American Publishers, February 26, 2009.
http://www.pspcentral.org/PSPFairCopyrightKeyPoints.cfm
Kevin Donovan, No Taxation Without Information, The Hoya (the student newspaper at Georgetown University), February 26, 2009.
http://thehoya.com/node/18112
Rep. Anna Eshoo (D-CA) supports the NIH policy, and says so boldly in reply to constituents who ask her to do so.
http://www.michaeleisen.org/blog/?p=207
Stefan Krempl, US-Gesetzesentwurf will staatliche Open-Access-Publikationen streichen, Heise online, February 27, 2009.
http://www.heise.de/newsticker/US-Gesetzesentwurf-will-staatliche-Open-Access-Publikationen-streichen--/meldung/133695
* At Open Access News, I posted several collections of comments from the press and blogosphere on the re-introduction of the Conyers bill.
http://www.earlham.edu/~peters/fos/2009/02/comments-on-conyers-bill.html
http://www.earlham.edu/~peters/fos/2009/02/comments-on-conyers-bill-2.html
http://www.earlham.edu/~peters/fos/2009/02/more-comments-on-conyers-bill.html
http://www.earlham.edu/~peters/fos/2009/02/comments-on-conyers-bill-4.html
http://www.earlham.edu/~peters/fos/2009/02/comments-on-conyers-bill-5.html
http://www.earlham.edu/~peters/fos/2009/02/more-comments-on-conyers-bill-6.html----------
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