april09b.indd


scholarly communication 
Heather Joseph 

Fair to whom? 
New House bill challenges public access 

In February, Rep. John Conyers (D­MI) rein­troduced a proposed piece of legislation, H.R. 
801, innocuously titled “The Fair Copyright in 

Research Works Act.” At first glance, it would 

be easy to dismiss this bill as just another of 

the myriad copyright and intellectual proper­

ty­related proposals that are routinely made 

in Congress, without much punch. However, 

it’s important for the library community to 

take a very close look at this particular bill. 

H.R. 801 actually packs quite a potential 

wallop and has widespread implications.1 It 

is designed to amend current U.S. copyright 

law, and carves out a subclass of copyrighted 

works—specifically, those works that are 

the result of taxpayer funding—and makes 

it illegal for the government to require that 

these works be made freely available to tax­

payers as a condition of the federal support 

researchers receive. 

The bill, originally introduced last Septem­

ber, would have the ultimate effect of “turn­

ing back the clock on the National Institutes 

of Health (NIH) Public Access Policy,” (as 

noted by Rep. Howard Berman, R­CA) and 

would stifle the government’s ability to make 

the results of research funded by all federal 

agencies—not just NIH—broadly available 

to the public. 

The U.S. government funds research with 

the expectation that resulting ideas and dis­

coveries will advance science, stimulate the 

economy, and improve the lives and welfare 

of members of the public. To this end, the 

NIH Public Access Policy ensures that the 

results of our nation’s $29 billion annual 

investment in research reach the broadest 

possible audience. The policy requires that, 

in exchange for receiving federal research 

dollars, grantees deposit the fi nal electronic 

manuscript of their peer­reviewed research 

articles into PubMed Central, NIH’s digital ar­

chive, to be made publicly available within 12 

months of appearance in a scholarly journal. 

A wide range of stakeholder groups— 

from libraries, universities, and colleges 

to patient advocates, Nobel Laureates and 

students—have embraced the NIH policy. Its 

appeal stems from wide­ranging benefi ts that 

include delivering broad access to the results 

of crucial biomedical research and allowing 

scientists and researchers to collaborate and 

engage in cutting­edge research. 

It also creates a permanent archive, en­

suring that not only this generation, but also 

future generations of researchers can build 

upon these results. The NIH policy creates 

a welcome degree of accountability and 

transparency, enabling better management 

of our collective investments in research, and 

extending maximum possible benefits to the 

public in return. 

Yet, H.R. 801 would reverse the only U.S. 

policy currently in place to ensure public ac­

cess to publicly funded research, and make it 

impossible for other agencies to enact similar 

policies. It is supported largely by the pub­

lishing lobby, who argue that such a law is 

needed to protect the value publishers bring 

to the final articles, specifically during the 

Contact Joyce L. Ogburn—series editor, cochair of 
the ACRL Scholar y Communications Committee, 
and university librarian at the University of Utah— 
with article ideas, e-mail: joyce.ogburn@utah.edu 

Heather Joseph is SPARC executive director, e-mail: 
heather@arl.org 
© 2009 Heather Joseph 

238C&RL News April 2009

mailto:heather@arl.org
mailto:joyce.ogburn@utah.edu


Senate approves NIH policy extension 
The Senate has passed H.R. 1105, the Con­
solidated Appropriations Act of 2009.The bill 
contained a small change to the language con­
cerning the NIH Public Access Policy, which 
effectively makes the policy permanent and 
negates the necessity of having the language 
explicitly included in the LHHS Appropriations 
Bill on an annual basis.The policy now reads: 

“The Director of the National Institutes of 
Health shall require in the current fi scal year 

and thereafter 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 fi nal, 
peer­reviewed manuscripts upon acceptance 
for publication to be made publicly available 
no later than 12 months after the offi cial date 
of publication: Provided,That the NIH shall 
implement the public access policy in a man­
ner consistent with copyright law.” 

peer review process. Publishers charge that the 

NIH policy unfairly “expropriates” the results of 

this value­added service from them. 

However, the publishing lobby’s argument 

ignores a crucial fact—that the peer review pro­

cess is a voluntary, unpaid process conducted 

by researchers, not by publishers. H.R. 801 

mistakenly over­values the contribution made 

by publishers, while ignoring that of research­

ers, authors, peer­reviewers and taxpayers, all 

of whom contribute to the process of scholarly 

publishing without direct remuneration. 

H.R. 801 also presupposes that the NIH Public 

Access Policy undermines the rights of the author 

and conflicts with U.S. copyright law. As attested 

to by NIH, legal scholars, and Congress, this is not 

the case. Copyright is an author’s right. NIH­funded 

research is copyrightable and—as is appropriate— 

the copyright belongs to the author. 

The NIH policy requires only the grant of a 

nonexclusive license to the agency, leaving the 

author free to transfer some or all of the exclu­

sive rights under copyright to a journal publisher 

or to assign them anywhere they so choose. The 

NIH policy in no way conflicts with copyright 

law. The fact that H.R. 801 would require a 

change to current U.S. copyright code to create 

such a conflict clearly underscores this point. 

If H.R. 801 were to pass, damage would be 

done not only to the public’s ability to freely ac­

cess the results of research that their tax dollars 

helped to fund, but also to our shared interpre­

tation of copyright policy and the peer review 

process. The results would be detrimental to the 

libraries, to researchers, to the academy, and to 

the public as a whole, leaving one to wonder, 

“The Fair Copyright in Research Works Act: fair 

to whom?” 

Note
1. More detailed information on the con­

tent and ramifications of the bill, as well how 
to contact your representatives, can be found 
at: www.taxpayeraccess.org/fcrwa.html. 

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April 2009  239 C&RL News 

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