111^th Congress

Fair Copyright in Research Works Act

H.R. 801

Background

The NIH Public Access Policy was established statutorily with the passage of the Consolidated Appropriations Act of 2008, which was signed into law in December 2007 as P.L. 110-161. This policy ensures that the public has access to the published results of National Institutes of Health (NIH)-funded research. It requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funding to the digital archive PubMed Central upon acceptance for publication. The policy requires that these papers be made accessible to the public on PubMed Central no later than 12 months after publication. The policy was extended through continuing resolutions and became permanent upon passage of the Omnibus Appropriations Act, 2009, signed into law on March 11, 2009, as P.L. 111-8.

From its inception, there was opposition to this policy, both when it was launched as a voluntary policy in 2005 and when the Appropriations Committee first wrote language into the annual appropriations bill, primarily by the large publishing community and specialty journals that claimed it would harm their business model. It was also opposed by Representative John Conyers, Jr. (D-MI), who claimed it was an infringement on the jurisdiction of the House Committee on the Judiciary.

On September 9, 2008, Representative Conyers, with cosponsors Representatives Darrell Issa (R-CA), Robert I. Wexler (D-FL), and Tom Feeny (R-FL), introduced H.R. 6845, the Fair Copyright in Research Works Act. The measure was introduced just prior to the hearing held before the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, Representative Howard L. Berman (D-CA), Chair, at which Dr. Elias Zerhouni, Director of NIH, testified. The purpose of the legislation would have been to prohibit the public access policy mandated through appropriations law for NIH. On February 3, 2009, Representative Conyers, along with cosponsors Representatives Stephen I. Cohen (D-TN), Trent Franks (R-AZ), Carolyn Maloney (D-NY), Issa, and Wexler, reintroduced the bill, identical to H.R. 6845, as H.R. 801.

Provisions of the Legislation/Impact on NIH

H.R. 801, introduced on February 3, 2009, would prohibit any Federal agency from imposing any condition in connection with a funding agreement that requires the transfer or license to or for a Federal agency or requires the absence or abandonment of specified exclusive rights of a copyright owner in an extrinsic work. This would undermine NIH’s public access policy.

The bill would prohibit any Federal agency from 1) imposing, as a condition of a funding agreement, the waiver of or assent to any such prohibition or 2) asserting any rights in material developed under any funding agreement that restrain or limit the acquisition or exercise of copyright rights in an extrinsic work.

The bill would define “funding agreement” as any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by the Federal agency for the performance of experimental, developmental, or research activities.

The bill would define “extrinsic work” as any work, other than a work of the U.S. Government, that is related to a funding agreement and is also funded in substantial part by, or results from a meaningful added value contributed by, one or more non-Federal entities that are not a party to the funding agreement.

Status and Outlook

To date, no further action has occurred on this legislation.

July 2009