A brilliant defense of the NIH Green OA Self-Archiving Policy against
the absurd charges of the publisher's lobby and its attorneys in the
Conyers Bill.
I generally avoid the legal aspects of OA because I can see so
clearly that 100% Green OA can be quickly and easily achieved without
having to waste a single minute on legal obstacles (via the IDOA
Mandate). But this is such an articulate and rigorous set of legal
arguments that I could not resist posting them further just for the
delight of the ineluctable logic alone.
Read, enjoy, admire, and rest assured that whether via the legalistic
route or just good, practical sense, OA will prevail. It is optimal,
inevitable, and irresistible. The anti-OA lobby is wasting its money
in trying to invoke law or laws to stop it; at best, they can just buy
a bit more time. (But if universities and funders opt directly for
IDOA mandates, that will deny the anti-OA lobby even that.)
Stevan Harnad
PS Unless I am mistaken, one detects the unseen legal hand and mind of
Peter Suber, plus a goodly dose of the seen hand and mind of Michael
Carroll in the drafting of this masterpiece.
---------- Forwarded message ----------
From: Peter Suber <[log in to unmask]>
Date: Tue, Sep 30, 2008 at 11:02 AM
Subject: [SOAF] Letter from 46 law professors to the House Judiciary Committee
To: SPARC Open Access Forum <[log in to unmask]>
[Forwarding from Michael Carroll. --Peter Suber.]
September 8, 2008
The Honorable John Conyers, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, D.C., 20515
Re: NIH Public Access Policy
Dear Chairman Conyers:
The undersigned professors at law schools throughout the United States
teach copyright law or engage in scholarly research about copyright
law. We write to respond to serious misstatements relating to
copyright law contained in a recent submission to the National
Institutes of Health with respect to the relationship between the NIH
Final Policy on Public Access and certain aspects of U.S. and
international copyright law. The letter (hereafter "the Proskauer
Letter") was written by Jon A. Baumgarten of Proskauer Rose LLP, dated
May 30, 2008, to Allan Adler, Vice President for Legal & Government
Affairs, American Association of Publishers in response to Mr. Adler's
request and with the understanding that the letter would be part of a
public submission to NIH by the AAP.
As you know, the NIH Policy requires grantees to ensure that all
investigators funded by NIH submit an electronic version of their
final peer-reviewed manuscripts to the National Library of Medicine's
PubMed Central (PMC), which then makes the manuscript publicly
available within twelve months of the official date of publication.
The NIH adopted this policy as required by a provision included in the
Labor, Health and Human Services, Education, and Related Agencies FY
2008 Appropriations Bill.
The Proskauer Letter alleges that the NIH Policy may constitute an
involuntary transfer of copyright in violation of Section 201(e) of
the Copyright Act. Contrary to the Proskauer Letter's assertions, the
Policy does not create an involuntary transfer, a compulsory license,
or a taking of the publishers' or investigators' copyright. Rather,
under the Policy, NIH conditions its grant of funding on the grantee's
agreement to ensure that investigators provide PMC with a copy of
articles reporting NIH-funded research along with a non-exclusive
copyright license to make the article publicly available within one
year after the article's publication in a journal.
In other words, if the investigator chooses not to receive NIH
funding, the investigator has no obligation to provide the article to
PMC or a copyright license to NIH. But if the investigator elects to
receive NIH funding, he or she accepts the terms of the grant
agreement, which include the requirement to deposit the article with
PMC so that the article can be made publicly accessible within one
year after publication. Because the investigator has this basic
choice, the policy does not constitute an involuntary transfer.
Furthermore, because the author makes this choice long before the
publisher enters into the picture, the policy does not take any
intellectual property away from the publisher. When the investigator
transfers copyright to the publisher, as most publishers require as a
condition of publication, the copyright is already subject to the
non-exclusive license granted by the investigator to NIH. Thus, the
policy does not change the scope of the publisher's copyright after
the publisher has acquired it.
Additionally, it is important to note that the Policy requires deposit
of the author's final manuscript after peer review, not the final
published version of the article. This aspect of the Policy renders
moot any debate about whether the publisher obtains a copyright
interest in the article through the process of copy editing or layout.
The publisher performs its copy editing after the investigator
submits the manuscript to PMC. While the publisher plays a role in
coordinating peer review, this process does not result in any
copyrightable expression attributable to the publisher. Any edits or
additional text written in response to peer reviewers' comments is
written by the investigator, not the publisher.
Building on the erroneous premise that the Policy is an involuntary
transfer of copyright or a compulsory license, the Proskauer Letter
then suggests that the NIH Policy might violate U.S. obligations under
the Article 9 of the Berne Convention or Article 13 of the TRIPS
agreement. This argument lacks any basis in law. As discussed above,
the NIH Policy governs the terms of contracts, not exceptions to
copyright law. As such, the Policy in no way implicates Article 13 of
TRIPS or Article 9 of the Berne Convention, which address permissible
copyright exceptions. These treaty provisions are completely silent
on the issue of the terms a licensee can require of a copyright owner
in exchange for valuable consideration.
The federal government provides funding to state and local government
agencies and private entities for a wide range of activities,
including homeland security, law enforcement, agriculture,
transportation, education, and research. Congress frequently imposes
conditions on recipients of this federal funding. While one might
question the wisdom of a particular condition, Congress without doubt
has the authority to impose them. Similarly, Congress has the
authority to require NIH grantees to deposit their manuscripts with
PMC and to grant a license to make these publicly accessible over the
Internet within a year of publication. Such a requirement conflicts
neither with the Copyright Act nor with international treaty
obligations.
Respectfully,
Keith Aoki, Professor of Law
University of California Davis School of Laaw
Davis, CA 95616
Ann Bartow, Professor of Law
University of South Carolina School of Law
Columbia, SC 29208
Dan L. Burk, Chancellor's Professor of Law
University of California, Irvine
Irvine, CA 92697-8000
949-824-9325
[log in to unmask]
Adam Candeub, Acting Director, IP & Communications Law Program
Michigan State University, College of Law
East Lansing, MI 48824-1300
Michael W. Carroll, Visiting Professor of Law
Washington College of Law, American University
Washington, DC 20016
Anupam Chander, Visiting Professor of Law
University of Chicago Law School
Chicago, IL 60637
[log in to unmask]
Andrew Chin, Associate Professor of Law
University of North Carolina School of Law
Chapel Hill, NC 27599
[log in to unmask]
Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice
Seattle University School of Law
Seattle, WA 98122-1090
Robert Denicola, Margaret Larson Professor of Intellectual Property
University of Nebraska-Lincoln College of Law
Lincoln, NE 68583-0902
William Fisher, Wilmer Hale Professor of Intellectual Property Law
Harvard Law School
Cambridge, Massachusetts 02138
[log in to unmask]
Brett M. Frischmann, Visiting Professor of Law
Cornell Law School
Ithaca, NY 14853-4901
(607) 255-3814
[log in to unmask]
Lolly Gasaway, Associate Dean For Academic Affairs & Professor
School of Law, University of North Carolina - Chapel Hill
Chapel Hill, NC 27599
919-962-8501
[log in to unmask]
Deborah R. Gerhardt, Director of Intellectual Property Initiative
University of North Carolina School of Law
Chapel Hill, NC 27599
Llewellyn Joseph Gibbons, Associate Professor of Law
University of Toledo College of Law
Toledo, Ohio 43606-3390
James Grimmelman, Associate Professor of Law
New York Law School
New York, NY 10013
Dan Hunter, Visiting Professor of Law
New York Law School
New York, NY 10013
[log in to unmask]
Peter Jaszi, Professor of Law
Washington College of Law, American University
Washington, DC 20016
E. Judson Jennings, Professor of Law
Seton Hall University Law Center
Newark, New Jersey 07102-5210
[log in to unmask]
Dennis Karjala, Jack E. Brown Professor of Law
Arizona State University Sandra Day O'Connor College of Law
Tempe, Arizona 85287-7906
(480) 965-4010
[log in to unmask]
Jay P. Kesan, Professor of Law & Mildred Van Voorhis Jones Faculty Scholar
University of Illinois at Urbana-Champaign
Champaign, IL 61820
Raymond Ku, Professor of Law
Case Western Reserve University School of Law
Cleveland, Ohio 44106
216-368-3963
[log in to unmask]
David S. Levine, Assistant Professor of Law
Charlotte School of Law
Charlotte, NC 28208
Doug Lichtman, Professor of Law
University of California, Los Angeles
Los Angeles, California 90095-1476
[log in to unmask]
Jessica Litman, Professor of Law
University of Michigan Law School
Ann Arbor, Michigan 48109-1215
Lydia Pallas Loren, Professor of Law
Lewis & Clark Law School
Portland, Oregon 97219
[log in to unmask]
Michael J. Madison, Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA 15260
[log in to unmask]
Mark P. McKenna, Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556
(574) 631-9258
[log in to unmask]
Michael J. Meurer, Professor of Law and Michaels Faculty Scholar
Boston University School of Law
Boston, MA 02215
[log in to unmask]
Joseph Scott Miller, Visiting Associate Professor of Law
University of Georgia School of Law
Athens, GA 30602
Neil Netanel, Professor of Law
UCLA School of Law
Los Angeles, CA 90095
310-825-1634
[log in to unmask]
Tyler Ochoa, Professor of Law
Santa Clara University School of Law
Santa Clara, California 95053
[log in to unmask]
Ruth Okediji, Professor of Law
University of Minnesota School of Law
Minneapolis, MN 55455
Frank Pasquale, Loftus Professor of Law
Seton Hall University School of Law
Newark, New Jersey 07102-5210
Malla Pollack, Professor of Law
Barkley School of Law
Paducah, Kentucky 42001
David G. Post, I. Herman Stern Professor of Law
Beasley School of Law, Temple University
Philadelphia, PA 19122
R. Anthony Reese, Arnold, White & Durkee Centennial Professor
School of Law, The University of Texas at Austin
Austin, TX 78705
Michael Risch, Associate Professor of Law
West Virginia University College of Law
Morgantown, WV 26506-6130
(304) 293-6838
[log in to unmask]
Matthew Sag, Assistant Professor of Law
DePaul University College of Law
Chicago, IL 60604
Pamela Samuelson, Richard M. Sherman Distinguished Professor
University of California, Berkeley
Berkeley, CA 94720-4600
(510) 642-6775
[log in to unmask]
Joshua D. Sarnoff, Practitioner in Residence
Washington College of Law, American University
Washington, DC 20016
Wendy Seltzer, Visiting Practitioner-in-Residence
Washington College of Law, American University
Washington, DC 20016
[log in to unmask]
Katherine J. Strandburg, Professor of Law
DePaul University College of Law
Chicago, IL 60604
Madhavi Sunder, Professor of Law
UC Davis Law School
Davis, CA 95616-5201
530.752.2896
[log in to unmask]
Hannibal Travis, Visiting Assistant Professor of Law
Villanova University School of Law
Villanova, PA 19085
Rebecca Tushnet, Professor of Law
Georgetown University Law Center
Washington, DC 20001
[log in to unmask]
Deborah Tussey, Professor of Law
Oklahoma City University School of Law
Oklahoma City, OK 73106
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