CONGRESS OKS NIH PROPOSAL, BUT WILL IT END UP IN COURT?
Congress yesterday expressed its support for the NIH’s proposal to make the research it funds freely available via PubMed Central via language in the Conference Report accompanying the FY 2005 Consolidated Appropriations Act (H.R. 4818, H Rept 108-792). NIH is now working on an implementation plan for this policy under a direction from Congress to give full and fair consideration to opposition comments and to work to maintain the peer review system. Meanwhile, a quick survey of the comments filed reveal deep divisions among those submitting comments and raises a number of thorny questions, including questions over the proposal’s legality. In a legal analysis done by the American Physiological Society (APS) in conjunction with American Association of Immunologists (AAI), questions were raised regarding the plan’s infringement of "copyright interests," as well as a host of other bureaucratic federal rules. According to the APS/AAI legal analysis, the NIH plan would "infringe on the copyright interests" of NIH grantees and of the journals publishing works by grantees. "These copyright interests are well- established under federal law," the groups argue, adding that "NIH has no authority to alter them on its own." APS/AAI add that NIH would seemingly need to obtain permission to distribute or display articles.
In response, the legal scholars advising the Alliance for Taxpayer Access (ATA), a coalition supporting the NIH proposal, quickly dismissed the APS/AAI analysis. Michael Carroll, adviser to the Alliance for Taxpayer Access, and professor at Villanova University School of Law, said that the NIH has always had license to reproduce, publish, and archive the research results that it has paid for. "The [APS/AAI] analysis is built on the false premise that NIH is making a change to copyright law," Carroll explained. "The fact is, in all cases, NIH grantees must give NIH a royalty-free, nonexclusive, and irrevocable license for the federal government to ‘reproduce, publish, or otherwise use’ the material and to authorize others to do so for federal purpose. Nothing in this proposal alters the terms of NIH’s license." Meanwhile, the APS/AAI comments cite other federal policies and regulations the NIH proposal seemingly violates, including the Freedom of Information Act and an OMB circular that says the NIH must perform a "cost comparison study." While Congress has issued its support, answers to those legal questions are unclear, and the APS/AAI filing has seemingly laid the groundwork to challenge the NIH in court.
Library Journal Academic Newswire, November 23, 2004
