'Fatally flawed' legal analysis will not stand

11/19/04

Legal experts challenge 11th hour allegations on copyright law

Washington DC (November 18, 2004) Legal scholars advising the Alliance for Taxpayer Access quickly dismissed the faulty analysis made by the American Physiological Society's outside counsel suggesting the National Institutes of Health's public access plan will infringe copyright claims of grantees and publishers. [The claims were included in the APS comments filed with the NIH this week.]

In rebuttal, intellectual property expert Michael Carroll stressed that the NIH proposed policy is "completely consistent with the scope of NIH's license and mission," and labeled the APS analysis a "fatally flawed house of cards."

Serving as adviser to the Alliance for Taxpayer Access, Carroll is an expert on intellectual property and Internet law, and teaches on the law faculty at Villanova University School of Law.

According to Professor Carroll, "The publishers acknowledge that NIH has always had license to reproduce, publish and archive the research results that it has paid for. It is explicit; there is no question about that."

"Their analysis is built on the false premise that NIH is making a change to copyright law. 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 and consequently, copyright law is not an obstacle for the NIH to move forward. Most of the APS counsel's other arguments rely on this misunderstanding of copyright law, and therefore, are inapplicable."

"Nothing could be more consistent with the federal purpose of NIH than collecting this research in an archive and allowing taxpayers and follow-on researchers to have access to the fruits of their NIH investment."

Rick Johnson, director of the Scholarly Publishing and Academic Resources Coalition added, "These 11th hour comments appear to have one intention. That is to throw seeds of confusion and legal doubt, where, in fact, there is none. The NIH proposal builds on current practice and it advances NIH's aim to use today's information technologies to fulfill its public mission. This is about special interests rising up to contravene NIH's efforts to serve and be accountable to the public."

Johnson cited the NIH mission as well as its commitment to public access to underscore the true purpose and legitimate scope of the NIH Enhanced Public Access directive, as shown below:

NIH Mission

The mission of the National Institutes of Health (NIH) is to uncover new knowledge that will lead to better health for everyone. The sharing of ideas, data, and research findings is encouraged by NIH as a primary mechanism for accomplishing this important public mission.

Public Access

Advanced computing technologies and a networked environment are creating an infrastructure that supports new research capabilities, expands the ability to build upon and connect the work of many scientists, and facilitates exploration of new scientific frontiers. These technological advances are providing new opportunities to enhance access to and archive the scientific literature.

Source: Eurekalert & others

Last reviewed: By John M. Grohol, Psy.D. on 21 Feb 2009
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