Mandating a nonexclusive right means that the author does
not
fully control the rights. Okay, fair enough: if you don't
believe that an author should have the full rights, why not
just
say that? Saying one own something except for when one
doesn't
isn't persuasive.
As I said in my original post, I have no problem with saying
that
work funded by a third party should be considered a work for
hire. What I find troubling is the pretense that this is
about
authors' rights when it in fact is taking away some authors'
rights.
And this is why mandates are necessary, because open access
does
not have the full support of the authors themselves. There
are
exceptions to this and they are significant.
My own view of a better policy (seconding in part Ann
Okerson's
recent comment to this list, but I doubt she would extend
the
remark as I am) is that government-funded research should be
written up and posted to government-funded open access Web
sites
without an embargo. In this formulation the author (really
"the
writer") has no rights in the work except for those the
granting
body chooses to assign to him or her. In some instances,
the
funding agency may choose to claim authorship of this work,
as
the work-for-hire statute provides (as in "copyright
(c) by the
NIH").
This will ultimately be much more expensive than the current
system, but if costs were the issue, we wouldn't be talking
about
open access to begin with.
Joe Esposito
----- Original Message -----
From: "Kevin L. Smith" <kevin.l.smith duke.edu>
To: <liblicense-llists.yale.edu>
Sent: Monday, October 29, 2007 4:09 PM
Subject: Re: NIH Public Access Mandate Passes Senate
>I am not sure any of these questions are really relevant
to a
>discussion of the NIH public access mandate, but I am
certainly
>willing to offer my answers to them from the perspective
of a
>supporter of that policy.
>
> 1. An author should have ownership rights in their own
work,
> in my opinion. I also recognize that the unique nature
of
> intellectual property means that those rights have to
be
> subject to limitations and exceptions in the public
interest.
> Every copyright law in the world, and all of the
international
> treaties, recognize and allow for such limitations and
> exceptions, so this is not a radical proposition. In
any case,
> the NIH policy is not a threat or challenge to
copyright
> ownership. In fact, the explicit language, which was
included
> in Ray English's post, requires that the mandate be
implemented
> in a way consistent with an author's ownership of
copyright.
>
> All that the NIH mandate requires is that authors
give to
> the NIH a non-exclusive right to distribute their work
no later
> than one year after it is published. This demand is a
much
> more modest limitation on authorial rights than is the
complete
> transfer of copyright still demanded by many publishers
as a
> precondition of publication. There is no evidence that
this
> delayed and non-exclusive license would harm an
author's
> ability to charge for her work, although that part of
the
> copyright has little application in the world of
academic
> authorship. On the other hand, there is evidence that
public
> access as soon as possible will benefit an author's
reputation,
> which is the real value academic authors are able to
extract
> from their copyright ownership.
>
> 2. I also support an author's right to transfer their
rights by
> contract; I spend a good deal of my time advising
academic
> authors about how to do that in a thoughtful manner
that
> benefits them, not just the other party to the
transfer.
> Again, the NIH policy will not impair the ability to do
this,
> it will simply make such contracts subject to the
non-exclusive
> license described above. Governments often put
restrictions
> and requirements on the contents of contracts; it would
be
> absurd to claim that the Uniform Commercial code has
seriously
> impeded a manufacturer's ability to sell his goods,
even though
> contracts for sale are much more heavily regulated than
a
> publication contract is, even after the NIH mandate.
>
> Remember that deposit in PubMed Central will not
be
> required until one year after publication, so there is
lots of
> room to negotiate the exact terms by which that
non-exclusive
> license will be implemented. I will certainly advise
authors
> to negotiate for earlier deposit, since it will be to
their
> benefit to do so.
>
> 3. It seems to me that academic work should not be
work for
> hire, although I recognize the strong legal basis on
which some
> universities claim that it is. My preference is for
clear
> policies that leave academic ownership of copyright in
the
> authors' hands. But again, the NIH policy has nothing
to do
> with work for hire; it certainly does not involve any
claim
> that funding of research makes a work a work made for
hire.
> Such a claim would be insupportable under our current
> definition of work for hire.
>
> When something is a work for hire, the ownership
of the
> copyrights vests immediately with the employer. In
contrast,
> the NIH is only requiring, again, a non-exclusive
license to
> distribute which will not have to come into being until
well
> more than a year after the copyright vests in the
author.
>
> 4. Given the reply to number 3, the scope of a
university's
> work for hire claim is really not relevant. But I
would note
> that many academics are not uncomfortable with a work
for hire
> claim over patentable inventions, recognizing, as they
do, that
> university resources are much more involved in such
creations
> and that the assistance of the university is needed to
pursue
> the complex and expensive process of obtaining a
patent.
> Copyright protection is very different in its
origination and
> its terms, so it is quite rightly treated differently.
>
> These responses have helped me clarify for myself why I
believe
> that the real threat to authors' copyrights is not the
NIH
> public access policy, but the outdated approach to
publishing
> that tries to build an exclusive market around a
> non-competitive good.
>
> Kevin L. Smith, J.D.
> Scholarly Communications Officer
> Perkins Library, Duke University
> Durham, NC 27708
> kevin.l.smithduke.edu
>
> -----owner-liblicense-llists.yale.edu wrote:
-----
>
> From: "Joseph J. Esposito" <espositojgmail.com>
> Sent by: owner-liblicense-llists.yale.edu
> Date: 10/26/2007 07:30PM
> Subject: NIH Public Access Mandate Passes Senate
>
> I can't speak to the bill's expectations regarding a
veto, but
> I am troubled that none of the questions that are at
the center
> of this discussion (center as defined by yours truly)
have come
> up anywhere that I have seen. So, my list of
questions:
>
> 1. Do you believe an author should have the right to
ownership
> of his or her own work? That right would include the
ability
> to charge for access if anyone is interested in
participating
> in a market. Or should an author (at least of
scholarly
> materials) have no presumption that he or she owns his
written
> work?
>
> 2. If you are comfortable with #1 (that is, you
support an
> author's choice to assert traditional copyright), do
you
> believe an author should be able to transfer that right
to
> another entity, whether a publisher or any other
institution?
> Does an author have the right to enter into a contract
> concerning his copyrights?
>
> 3. Most academic authors do their work while being
compensated
> by others--a university, for example, or a grant-giving
body.
> Should that fact alone (being paid to write up
research) be
> sufficient reason to assert that the copyrights belong
to the
> funding body? In effect, is an academic author's
writing a
> work for hire under the copyright law? (A corporate
employee
> who writes materials or software or whatever does so as
work
> for hire.)
>
> 4. If you take the position in #3, should the
work-for-hire
> status extend to other intellectual property created
while in
> the employ of a university? Patents? Textbooks? If
textbooks
> (which in some instances literally provide hundreds of
> thousands of dollars in royalties to authors who teach
at
> universities) are to be covered by work-for-hire, how
will this
> policy be introduced to faculty? Also, how would you
handle
> related activity such as consulting? Is this all work
for
> hire?
>
> The principle that sits behind all these questions is
that of
> authors' rights. The open access movement is all about
> readers' rights, but should an author have the right to
own the
> fruits of his own labor and the right to contract for
the sale
> of that work?
>
> Incidentally, while I personally lean toward points ##1
and 2,
> the case for #3 is not unreasonable. I simply can't
square it
> with #4. Someone else may have the privilege of
telling the
> faculty of the Stanford Business School that they have
to turn
> over their consulting income (including stock options)
to the
> university.
>
> Best,
>
> Joe Esposito
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