Detailed Summary

Fair Copyright in Research Works Act - Prohibits any federal agency from imposing any condition, in connection with a funding agreement, that requires the transfer or license to or for a federal agency, or requires the absence or abandonment, of specified exclusive rights of a copyright owner in an extrinsic work.

Prohibits any federal agency from: (1) imposing, as a condition of a funding agreement, the waiver of, or assent to, any such prohibition; or (2) asserting any rights in material developed under any funding agreement that restrain or limit the acquisition or exercise of copyright rights in an extrinsic work.

Defines "funding agreement" as any contract, grant, or other agreement entered into between a federal agency and any person under which funds are provided by a federal agency for the performance of experimental, developmental, or research activities.

Defines "extrinsic work" as any work, other than a work of the U.S. government, that is related to a funding agreement and is also funded in substantial part by, or results from a meaningful added value contributed by, one or more nonfederal entities that are not a party to the funding agreement.

Status of the Legislation

Latest Major Action: 3/16/2009: Referred to House subcommittee. Status: Referred to the Subcommittee on Courts and Competition Policy.

Points in Favor

HR 801 would reverse an NIH mandate that requires public access to articles covering NIH-funded research. The mandate requires NIH-funded researchers who write articles about their research for publication in science journals to submit their final, peer-reviewed manuscripts to the agency immediately upon acceptance for journal publication, so the NIH can post the manuscript online for free worldwide access within twelve months of the work's publication in the journal. As a result, NIH undermines the value of the copyright that the journal publisher acquires from the article's author and competes with the private sector by making the earlier version of the article freely available not just to American taxpayers but to the whole world, including foreign corporate and government institutions that will get a free ride, at the expense of both journal publishers AND U.S. taxpayers.

HR 801 simply seeks to return to the status quo that existed before the NIH pursued Congressional authority to engage in its unprecedented program of direct competition with, and uncompensated taking of value from, science journal publishers in the private sector. Through provisions in the America Competes Act addressing research funded by the National Science Foundation, Congress has already shown that federal law can ensure broad public access to the results of federally-funded research while acknowledging and encouraging the important continuing contributions that science journal publishers make in vetting, disseminating and preserving the formal public record of scientific research. NIH would better serve the public interest by using its appropriated funds to directly support biomedical research, rather than using them to compete with established private sector publishers and undermining the incentives for private sector investments in helping to ensure the quality and integrity of scientific research.

HR 801 would not create any new form of copyright protection or otherwise limit the rights of the public to access and use such published research articles consistent with existing copyright law; instead, it would only prevent federal agencies like the NIH from requiring that recipients of research funding must allow the funding agency to exercise rights of copyright in copyrighted works that such recipients may create in connection with such research, and only in situations where the copyrighted work either (1) is also funded in substantial part by an entity that is not a federal agency and is not a party to the funding agreement, or (2) represents, reflects or results from a meaningful added value or process contributed by such an entity.

HR 801 would not prevent any journal publishing business models. It would simply ensure that the government does not put its thumb on the scale in favor of one model, the open access model, over other models, such as the much more widespread subscription model.

HR 801 would not otherwise affect the ability of NIH or any other federal agency to negotiate research or other funding agreements with persons outside the federal government, nor would it in any way affect the ability of such funding agreements to require the submission of written reports by the funded researchers to the funding agency. Similarly, HR 801 would not affect the ability of taxpayers to access the written reports submitted by funded researchers to the funding agency.

HR 801 would not otherwise affect the ability of NIH or any other federal agency to engage in day-to-day procurement practices, nor would it prevent any federal agency employees from creating or commissioning the creation of copyrighted works, or from obtaining a license to publicly distribute, perform or display a copyrighted work produced by a funded researcher.

For background information please visit http://www.pspcentral.org/comm.....s_001.cfm.

Points Against

H.R. 801 would reverse the NIH policy for taxpayers to have access to research funded with taxpayer dollars and make it impossible for other federal agencies to put similar policies into place.

H.R. 801 is designed to amend current copyright law and create a new category of copyrighted works (Section 201, Title 17). In effect, it would:

1. Prohibit all U.S. federal agencies from conditioning funding agreements to require that works resulting from federal support be made publicly available if those works are either: a) funded in part by sources other than a U.S. agency, or b) the result of "meaningful added value" to the work from an entity that is not party to the agreement.

2. Prohibit U.S. agencies from obtaining a license to publicly distribute, perform, or display such work by, for example, placing it on the Internet.

3. Stifle access to a broad range of federally funded works, overturning the crucially important NIH Public Access Policy and preventing other agencies from implementing similar policies.

4. Because it is so broadly framed, the proposed bill would require an overhaul of the well-established procurement rules in effect for all federal agencies, and could disrupt day-to-day procurement practices across the federal government.

5. Repeal the longstanding "federal purpose" doctrine, under which all federal agencies that fund the creation of a copyrighted work reserve the "royalty-free, nonexclusive right to reproduce, publish, or otherwise use the work" for any federal purpose. This will severely limit the ability of U.S. federal agencies to use works that they have funded to support and fulfill agency missions and to communicate with and educate the public.

Because of the NIH Public Access Policy, millions of Americans now have access to vital health care information through the PubMed Central database. Under the current policy, nearly 3,000 new biomedical manuscripts are deposited for public accessibility each month. H.R.801 would prohibit the deposit of these manuscripts, seriously impeding the ability of researchers, physicians, health care professionals, and families to access and use this critical health-related information in a timely manner.

Background on the NIH Public Access Policy and H.R. 801 is available at http://www.taxpayeraccess.org.

Please ask your Representative to OPPOSE H.R. 801 and add your vote to WashingtonWatch.