Fair Copyright in Research Works Act

The “Fair Copyright in Research Works Act” (Bill H.R 801 IH, also known as the “Conyer's Bill”) was submitted as a direct response to the National Institutes of Health

National Institutes of Health

The National Institutes of Health are an agency of the United States Department of Health and Human Services and are the primary agency of the United States government responsible for biomedical and health-related research. Its science and engineering counterpart is the National Science Foundation...

(NIH) Public Access Policy; intending to reverse it.

The bill’s alternate name relates it to U.S Representative John Conyers

John Conyers

John Conyers, Jr. is the U.S. Representative for , serving since 1965 . He is a member of the Democratic Party...

(D-MI), who introduced it at the 111th United States Congress

111th United States Congress

The One Hundred Eleventh United States Congress was the meeting of the legislative branch of the United States federal government from January 3, 2009 until January 3, 2011. It began during the last two weeks of the George W. Bush administration, with the remainder spanning the first two years of...

on February 3, 2009.

The initiative of the bill is to amend Title 17 of the United States Code with respect to works associated with specific funding agreements. It would ultimately prohibit federal agencies from placing any conditions for copyright transfer on funding agreements; effectively making the current NIH policy illegal.

Title 17 of the United States Code

Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law.—Subject Matter and Scope of Copyright—Copyright Ownership and Transfer—Duration of Copyright—Copyright Notice, Deposit, and Registration—Copyright Infringement and...

is the title that outlines United States copyright law. Sections 106 −on the exclusive rights in copyrighted works− and 201 −on copyright ownership and transfer of ownership− are both referenced in H.R.801. The amendment it proposes would be in reference to funding agreements in the scope of those segment of the the title.

NIH Public Access Policy

The NIH Public Access Policy applies Division G, Title II, Section 218 of PL 110-161 (Consolidated Appropriations Act, 2008). which states:

"The Director of the National Institutes of Health shall require 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 final, peer-reviewed manuscripts upon acceptance

for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, that the NIH shall

implement the public access policy in a manner consistent with copyright law."

Applicability

The work must be:

1. Peer reviewed

2. Published or approved for publication by a journal on or after April 7, 2008

3. "And, arises from:

Any direct funding from an NIH grant or cooperative agreement active in Fiscal Year 2008 or beyond, or;
Any direct funding from an NIH contract signed on or after April 7, 2008, or;
Any direct funding from the NIH Intramural Program, or;
An NIH employee"

Compliance

The NIH requests that the manuscript be submitted correctly and that they be granted copyright permission to make it publicly accessible

Publishers who would like to generate a profit from their research or sustain a scholarly society, may note that “public access” only takes place 12 months after publication, and the work is the final draft author has provided.

The proposed statute

H.R.801: The Fair Copyright in Research Works Act would, specifically, amend Sections 201 (d) and (e) of Title 17 of the United States Code− which pertain to the transfer of copyright ownership.

The code would be amended by way of adding limitations on the Federal Government, with regard to funding agreements− i.e. "a contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities"− on extrinsic works−i.e. "any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement" which represents or stems from the value or process of one or more non-federal and non-party affiliated entities− who have "funded [it] in substantial part".

The bill states that:

1. On the transfer of copyright ownership:

The exclusive rights granted by sections 106 (3), (4), and (5) of the code, would be set as reasons to prohibit Federal agencies from imposing terms or conditions that demand any such transfer.
The rights outlined in section 106 (1) and (2), in an extrinsic work, would also keep them from setting stipulations of the like “to the extent that, the [rights involve] the availability to the public of that work”
Any terms requiring "the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work" are also disallowed.

2. Federal agencies are also prohibited from imposing or facilitating terms that may result in the approval or waiver of any of the previously stated bans, for a funding agreement

3. Federal agencies may not apply any of the rights granted by Title 17 in an extrinsic work, to material developed under a funding agreement that may "restrain or limit the acquisition or exercise of [said rights]"

Conditions

The law would only be applicable in the event that:

It is not interpreted in a way that compromises "the rights provided to the copyright owner under paragraphs (1) and (2) of section 106"
"No new copyright material is created" − i.e. "nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102"
The funding agreement requiring its application has been "entered into on or after the date of the enactment of this act"

Process

Report to Congressional Committees shall be made no later than 5 years after the date the act is ratified.
After conducting the necessary research, the Register of Copyrights will

"review and submit to the appropriate congressional committees a report on [its] views on section 201(f) of title 17, United States Code,

as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed

under funding agreements, including the role played by publishers in the private sector and others"

H.R.801's legislative history

As of March 16, 2009 H.R.801 has been referred to the House Committee on the Judiciary, which has in turn referred it to the Subcommittee on Courts and Competition Policy.

This bill has not become law. Sessions of Congress last two years, at the end of which all proposed bills and resolutions that have not been passed are removed. Members may and often do reintroduce bills that did not come up for debate.

An exact replica of this bill (H.R. 6845.IH) was first introduced in the 110th Congress, where it died.

Initial reactions

The bill is has been the topic of numerous articles, in online civic and scholarly publications. Its supporters are predominantly scientific research associations and publishing houses, while the opposition mostly consists of Library Associations

Support

Groups, including the Association of American Publishers

Association of American Publishers

The Association of American Publishers is the national trade association of the American book publishing industry. AAP has more than 300 members, including most of the major commercial publishers in the United States, as well as smaller and non-profit publishers, university presses and scholarly...

(AAP), support Conyer's bill, as they feel that the NIH Policy "infringes on their business rights, insofar as it grants the public a right to this publicly funded work". In December 2008, the AAP contacted President Barack Obama

Barack Obama

Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...

voicing concerns that “the NIH mandate severely diminishes both the market and copyright protection for these copyrighted works to which not-for-profit and commercial publishers have made significant value-added contributions”.

Criticism

One of the concerns regarding this bill is the possibility that average Americans will lose access to medical research, that the NIH Public Access Policy grants them. The American Research Libraries, the Alliance for Taxpayer Access, and a coalition of patients' rights organizations, are among numerous critics of the act. Academic institutions including Harvard University, Cornell University, and Earlham College are openly supporting the NIH Public Access Policy and opposing Conyer's Bill along with their respective libraries, also stressing the importance of public access to biomedical research and results. Cornell University claims to be affected as the NIH is one fo the components of the Department of Health and Human Services (DHHS), "the largest funder of research at Cornell. According to the Office of the Vice Provost of Research, the DHHS accounted for more than 50 percent of federally sponsored research — or over $190 million per fiscal year — in both 2007 and 2008". Their Libraries view the bill as a threat to the "state-of-the-art digital repository where research can be preserved," that the policy provides and a potential loss of acquired research due to the bill's prohibition of copyright transfer from author to publisher.