While SOPA grabs entertainment industry headlines, a new bill introduced in the House of Representatives in December 2011 is creating quite a stir among research scientists.  It’s called the Research Works Act.  The purpose of the bill is “[t]o ensure the continued publication and integrity of peer-reviewed research works by the private sector.”  The dispute is about public access to and control over research works that are funded by the National Institutes of Health (NIH), but that also involve significant private funding.

Eric Widera describes the negative reaction to the bill by some scientists in his post entitled Copyright and Access to Taxpayer Funded Research, on GeriPal, a Geriatrics and Palliative Care Blog.  Widera indicates that the Research Works Act poses a threat to the NIH public access policy.

The Research Works Act is short enough to include the entire bill below:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Research Works Act’’.

SEC. 2. LIMITATION ON FEDERAL AGENCY ACTION.

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that—

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

SEC. 3. DEFINITIONS.

In this Act:

(1) AUTHOR.—The term ‘‘author’’ means a person who writes a private-sector research work. Such term does not include an officer or employee of the United States Government acting in the regular course of his or her duties.

(2) NETWORK DISSEMINATION.—The term ‘‘network dissemination’’ means distributing, making available, or otherwise offering or disseminating a private-sector research work through the Internet or by a closed, limited, or other digital or electronic network or arrangement.

(3) PRIVATE-SECTOR RESEARCH WORK.—The term ‘‘private-sector research work’’ means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

The current NIH public access policy effectuates Division G, Title II, Section 218, PL 110-161, known as the Consolidated Appropriations Act, 2008.  That law states:

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

PubMed Central (PMC) is “a free archive of biomedical and life sciences journal literature at the U.S. National Institutes of Health's National Library of Medicine.”  The PubMed Central website indicates that

free access does not mean that there is no copyright protection. As described on our copyright page publishers and individual authors continue to hold copyright on the material in PMC and users must abide by the terms defined by the copyright holder.

The PMC copyright page indicates that “[t]he respective copyright holders retain rights for reproduction, redistribution and reuse.... Transmission, reproduction, or reuse of protected material, beyond that allowed by the fair use principles of the copyright laws, requires the written permission of the copyright owners.” 

If the copyright owner’s rights are protected by the current law, why is there a need for the Research Works Act?  The Association of American Publishers (AAP) hails the bill as

significant legislation that will help reinforce America’s leadership in scholarly and scientific publishing in the public interest and in the critical peer-review system that safeguards the quality of such research....

The legislation is aimed at preventing regulatory interference with private-sector research publishers in the production, peer review and publication of scientific, medical, technical, humanities, legal and scholarly journal articles.

AAP website, under Publishers Applaud “Research Works Act,” Bipartisan Legislation To End
Government Mandates on Private-Sector Scholarly Publishing.

The AAP indicates that publishers spend millions of dollars funding staff, editors, technology, capital and operations for independent peer review.  The AAP’s position is that even if research is federally funded, the private sector funds the production and publication of the research.  The AAP wants the private sector to control the dissemination of research information that may have been paid for by federal funds.  The AAP’s position is that federal agencies’ electronic repositories unfairly compete with university, society and commercial publishers.  The AAP supports broad access to publicly-funded research, but without government mandates.  The AAP contends that the Research Works Act is necessary to maintain incentives for private-sector investment in research works. 

What is the proper balance between public access to publicly funded research and private control over those portions of the process that are privately funded?