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Free-For-All: Public Access and Publisher Rights Collide in the Fair Copyright in Research Works Act of 2009

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Free-For-All: Public Access and Publisher Rights Collide in the Fair Copyright in Research Works Act of 2009 DePaul Journal of Art, Technology & Intellectual Property Law Volume 20 Issue 1 Fall 2009 Article 6 Free-for-All: Public Access and Publisher Rights Collide in the Fair Copyright in Research Works Act of 2009 Stephanie Snyder Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Stephanie Snyder, Free-for-All: Public Access and Publisher Rights Collide in the Fair Copyright in Research Works Act of 2009, 20 DePaul J. Art, Tech. & Intell. Prop. L. 127 (2009) Available at: https://via.library.depaul.edu/jatip/vol20/iss1/6 This Legislative Updates is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Snyder: Free-for-All: Public Access and Publisher Rights Collide in the F FREE-FOR-ALL: PUBLIC ACCESS AND PUBLISHER RIGHTS COLLIDE IN THE FAIR COPYRIGHT IN RESEARCH WORKS ACT OF 2009 I. INTRODUCTION With its current annual budget of $30.5 billion,' the National Institutes of Health ("NIH") makes no small mark in the field of competitive research grant funding. More than eighty percent of that number is awarded to researchers around the world to fund their research,2 the very research that fuels global advances in life science and medicine. Naturally, because the NIH is a federal agency, its full budget comes from the allowances Congress makes for it in various appropriation and spending bills. This money comes from the taxes we all pay each year; therefore, it is not a difficult leap to consider the issue at the root of the public access controversy. If the taxpayers funded the research on the front end, why should they be subjected to the sky-high journal subscription prices necessary to read the research when it is published? Did President Obama not promise that transparency, participation, and collaboration would be the hallmarks of his administration?3 Surprisingly, the public access policy instituted by the NIH and the resulting legislation proposals have become the source of one of the most heated intellectual property debates that Washington has seen in some years. This debate represents not only an opportunity for President Obama to reinforce his commitment to transparency, but also his chance to show that open government is fully compatible with our existing safeguards for intellectual property protection. This Article addresses a recent piece of legislation to come into the public access fray: The Fair Copyright in Research Works Act 1. See Omnibus Appropriations Act, 2009, Pub. L. No. 111-8 § F(II), 123 Stat. 524. 2. Id. 3. See Transparency and Open Government, 74 Fed. Reg. 4685-86 (Jan. 26, 2009) ("My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration."). Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 20, Iss. 1 [2016], Art. 6 DEPA UL J ART, TECH & IP LA W [Vol. XX: I - House Resolution 801 ("H.R. 801"). It begins with Section II, a background discussion of the two competing interests fueling this debate. Part A describes the taxpayers' perceived right to free access to federally-funded medical research. Part B describes the journal publishing industry's desire to stay financially sound enough to continue to provide its services. Part C of the Background section provides the roadmap to H.R. 801 and the development of the NIH public access policy. Part D briefly discusses H.R. 801 's predecessor bill, H.R. 6845. Section III will delve into H.R. 801 itself. Part A will discuss the provisions of H.R. 801 and the direct conflicts they make with the NIH's public access policy. Part B outlines the arguments made by the bill's supporters, with Part C providing the responses of the opposing side. Finally, Section IV explores the possibility of an amicable resolution. Part A will discuss the lessons to be learned from two previous legislations on similar topics, America COMPETES and the Bayh-Dole Act. Part B will consider the issues that will be central to resolving the public access conflict. Lastly, Part C will outline a proposed solution that will hopefully placate both sides. II. BACKGROUND A. Taxpayers'Access to Federally-FundedMedical Research With American taxpayers funding medical research to the tune of more than $30 billion per year,4 it is no small wonder that they expect some sort of return on that investment.' Beyond wanting access to this information for themselves, they want to ensure that 4. See supra note 1. 5. Press Release, Alliance for Taxpayer Access, CALL TO ACTION: Ask Your Representative to Oppose the H.R. 801 - The Fair Copyright in Research Works Act (Feb. 11, 2009) (on file with author) "H.R. 801 is designed to amend current copyright law and carves out a subclass of copyrighted works... - precisely those that are supported by taxpayers - and makes it illegal for the government to require that that special subclass by [sic] made freely available to taxpayers as a condition of the federal support." Id. https://via.library.depaul.edu/jatip/vol20/iss1/6 2 Snyder: Free-for-All: Public Access and Publisher Rights Collide in the F 2009] FAIR COPYRIGHT IN RESEARCH WORKS ACT 129 doctors and researchers around the world have the NIH's research to build on in their ventures to cure the world's sicknesses.6 Internet access is now commonplace in the American household, and patients use public access policies to participate in their own care and treatment. It is not rare to have newly diagnosed cancer patients approach their doctors with their own research, hoping that this new collaborative care will increase their chances of survival. During a Congressional Subcommittee hearing on a previous version of the Fair Copyright in Research Works Act ("H.R. 6845"), the Subcommittee heard oral testimony from Heather Joseph, appearing not only on behalf of the Scholarly Publishing and Academic Resources Coalition, but also as the mother of a diabetic child.7 She shared with the Subcommittee her frantic early morning Internet search, moments after returning from the hospital where they had learned of her son's diagnosis.8 During that search, she came upon a study rating glucose monitors that would help her keep her son's insulin level under control overnight.9 What she found was not a published journal article; it was the author's final manuscript deposited in PubMed Central ("PMC") as a direct result of the NIH policy. 0 This testimonial is a persuasive illsutration in support of the NIH's public access policy. An elementary schoolteacher, Mary Hutchings of Truro, Massachusetts wrote to the Subcommittee and shared a story about her access to research on a rare disease affecting both her husband and daughter. " She told the committee that after half of her 6. See id. "H.R.801 would ... seriously imped[e] the ability of researchers, physicians, health care professionals, and families to access and use this critical health-related information in a timely manner." Id. 7. The FairCopyright in Research Works Act: Hearing on H.R. 6845 Before the Subcomm. on Courts, the Internet and Intellectual Propertyof the H. Comm. on the Judiciary, 1 10th Cong. 58 (2009) [hereinafter Hearing] (testimony of Heather Dalterio Joseph, Executive Director, Scholarly Publishing and Academic Resources Coalition). 8. Id. at 59. 9. Id. 10. Id. 11. Id. at app. at 166 (letter submitted to the hearing record by Mary Hutchings). Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 20, Iss. 1 [2016], Art. 6 DEPA UL J ART, TECH. & IP LAW [Vol. XX: I family was diagnosed with cerebellar ataxia, her only respite from her anxieties was reading new research that promises new therapies for the disease. 2 She described her frustrating search for papers that she could read for free, as her tiny town lies at the far end of Cape Cod, miles from any research hospitals or university libraries." 3 Mary Hutchings' experience is not unusual, and she felt that H.R. 6845 would restrict her access even further and deny her the solace she found in reading up-to-date research for free online. 14 B. The Scientific, Technical, & Medical 5 JournalPublishing Industry Though providing free access to medical research seems to be an easy decision, the reality is that there is an entire industry that survives by publishing this research for a price. STM publishers are a common avenue by which researchers communicate their research results to colleagues around the world.16 These publishers can range from worldwide organizations with millions of dollars in annual profit to the smallest non-profit groups whose mission statements mirror exactly the access goals of the NIH policy. Nevertheless, commercial or non-profit, these groups require an influx of money to continue to operate. Free access cannot come free. A look at the process of having an article published in a journal demonstrates the benefits journals provide to the publishing process and why they must be preserved. Once researchers have finished their work, compiled their data, and produced a manuscript, they must find a journal willing to invest in the publication of their work. It is estimated that between fifty and 12. Id. 13. Hearing, supra note 7 at app. at 166 (letter submitted to the hearing record by Mary Hutchings). 14. Id.
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