Publishers May Challenge NIH Mandate:
After two ineffective years of a National Institutes of Health (NIH) policy that requested researchers to deposit copies of their final research papers in PubMed Central, the U.S. House of Representatives and the Senate have backed provisions in their respective 2008 Labor, Health and Education Appropriations Bills that will require deposit of NIH-funded researchers' final papers. Advocacy groups this week hailed the policy an important step forward for public access to research. Language added in the House bill, however, raises serious questions about implementation. While it "requires" deposit of an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication, additional language states that "NIH shall implement the public access policy in a manner consistent with copyright law."
While seemingly innocuous, that language almost certainly will form the basis for a challenge to the policy's implementation. In a letter to lawmakers, the Association of American Publishers (AAP) argued that "a mandate may not be consistent with copyright law," a position emphasized by Brian Crawford, chair of the AAP's Professional and Scholarly Publishing Division Executive Committee. "The copyright proviso in the Labor/HHS Appropriations language does not in itself provide sufficient assurance of copyright protection," Crawford told the LJ Academic Newswire. "The mandatory deposit of copyrighted articles in an online government site for worldwide distribution is in fundamental, inherent, and unavoidable conflict with the rights of copyright holders in those works."
Crawford asserted that the application of the policy to non-assenting publishers, "whether cloaked in the guise of funding, appropriations, or other policy," is "an extraordinary and unprecedented exception to the most fundamental of publishers' copyrights—namely, the right to reproduce and distribute the copyrighted work." Such strong rhetoric seems to indicate that, if the bill becomes law (House and Senate votes are expected later this summer), publishers almost surely will challenge its legality in terms of copyright. Crawford also laid the foundation of a broader argument against the NIH policy, asserting that it would negatively impact the ability of trade representatives to enforce U.S. intellectual property rights internationally. "Requiring the mandatory submission of research articles for public, worldwide dissemination would set a very dangerous precedent," Crawford contended, "at the very time we are fighting abroad to protect the intellectual property rights that are so important to securing this nation's competitive position."
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