Accès libre Information et savoirs Livre et édition
Le droit d’auteur et l’accès libre
Olivier Charbonneau 2008-11-04
Let me digress for moment on the copyright objection. It will shed light on the publishing lobby’s tactics and show the sense in which the NIH policy is not only lawful, but battle-tested and ready to extend to other federal funding agencies.
All sides understand that if publishers held full copyright in these research articles, then the NIH would need publisher permission before providing OA to its own copies. To get around this problem, the NIH policy requires grantees not to transfer full copyright to publishers. NIH-funded researchers retain the right to authorize OA. They may transfer all their other rights to a publisher, and typically do. OA through the NIH is authorized by the copyright holders, and publishers only acquire a package of rights subject to that prior authorization. When NIH-funded authors approach publishers, they don’t merely ask « will you publish my article? » but « will you publish it under these terms? » It’s a business proposition which publishers may take or leave, and publishers are virtually unanimous in taking it.
When publishers say that the NIH policy violates their rights, they are being careless with truth. Authors have the right to transfer all, some, or none of their rights to publishers. Publishers may have gotten used to the custom in which authors transferred all their rights, and may prefer it, but they can’t pretend that it’s an entitlement or a requirement of copyright law. Their real complaint is that authors are lawfully exercising their own rights under copyright law, and that publishers now acquire fewer rights than they want to acquire and fewer than they used to acquire. Their real complaint is that their chief supplier is offering a critical resource on less attractive terms than in the past, though still free of charge.
It does not violate publisher rights for authors to drive a harder bargain and transfer less than the full bundle of copyright. Nor does it violate publisher rights for authors to use the right they retain to authorize OA. Publishers have an undiminished right to refuse to publish work by NIH-funded authors, and an undiminished ability to hold and exercise the rights they do acquire from authors.
If the NIH policy triggered actual infringement, publishers would say so. They would go to court, where they have a remedy under existing law. But instead they have gone to Congress to change the law, creating at once a threat to a valuable policy and proof that the NIH policy is consistent with current copyright law.
* You will be under immense pressure to continue to tilt our unbalanced copyright law further toward the content industry, especially as the trend continues for US exports to depend less on manufactured goods and more on intellectual property. The trend is real and you may even want to work with the content industry to promote or maximize those exports. But you can support copyright exports without giving up on balance in copyright law or favoring publishers at the expense of authors and readers.
You can support the legitimate interests of this legitimate industry without harming science and innovation. But to do so, you must see how scientific research differs music and movies. Science thrives when we lift restrictions on access and use, and suffers when we tighten them, the opposite of royalty-driven intellectual property. Scholarly journals don’t pay authors, who can therefore consent to OA without losing revenue. Universities pay scholars in part to free them from the market and free them to publish what they find to be true and important, even if only handful of people in the whole world care to read it or are in a position to understand it. Universities reward scholars for their research publications, creating incentives to publish entirely unrelated to the market value of their publications.
Research articles differ sharply from other categories of copyrighted content, where authors are paid by publishers, where author rewards are proportional to sales, where the temporary monopoly of copyright is an essential incentive for author creativity, and where the publisher interest in limiting circulation to paying customers also serves the author’s interest.
To advance the interests of the larger copyright industry as if academic publishing were just like music and movies would have the perverse effect of locking up knowledge, reducing its impact, and slowing research. OA, by contrast, accelerates research and amplifies its impact, not only for researchers but for the entire economy.
As John Houghton and Peter Sheehan argued in 2006: « With the United State’s GERD [Gross Expenditure on Research and Development] at USD 312.5 billion and assuming social returns to R&D of 50%, a 5% increase in access and efficiency [theirconservative estimate] would have been worth USD 16 billion. »
http://www.cfses.com/documents/wp23.pdf
