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House Hearing Looks Into Limiting NIH Open Access Policy

NEW YORK (GenomeWeb News) – Congress is considering a bill that would limit the National Institutes of Health’s open access policy that requires that NIH-funded studies make their results publicly available within 12 months after publication in a journal. 
 
The House Judiciary Committee this week began looking at a new bill that claims that the NIH policy breaches standing copyright law, under which the scientific publishers are protected, an argument that groups representing these publishers presented before NIH adopted the rule this year.
 
In a hearing on Thursday, the committee entertained the testimony of four witnesses, including NIH Director Elias Zerhouni, concerning the “Fair Copyright in Research Works Act,” which was introduced this week by Representative John Conyers (D – Mich).
 
The bill would amend the US Code to keep the federal government from imposing terms or conditions regarding licenses or rights based on certain federal funding conditions.
 
In comments introducing the bill, Conyers said that it "would prevent the Federal Government from requiring the transfer of intellectual property rights from researchers expressly in cases where there are non-federal financial or other contributions made toward the advancement or dissemination of science."
 
At the hearing, George Washington University intellectual property law professor Ralph Oman held that the NIH policy is not in line with US IP laws, but Representative Howard Coble (R - NC) admitted at the opening of his statements that “this is not your typical copyright issue.”
 
Oman said that in his role as a professor he had “no stake in the fight, but, like an old firedog, when the bell rings, I come out to the rescue of the copyright system.”
 
“My basic concern is the dilution of the rights of copyright owners,” Oman said, adding that the NIH open-access policy “will destroy the commercial markets for scientific technical and medical journals.”
 
Martin Frank, executive director of the American Physiological Society and an opponent of the NIH policy, told the committee that the “mere fact that a scientist accepts as part of her funding a federal grant should not enable the federal government to commandeer the resulting research paper and treat it as a public domain work.”
 
Frank said the policy is “not fair to the publisher,” who, he said, “improves the work through a rigorous peer review process and develops it for publication.”
 
NIH Director Elias Zerhouni came to the hearing ready to defend the policy, which NIH began implementing this spring, and he gave the members of Congress a slide presentation that showed how swiftly medical knowledge advances, and how open sharing of that information can cause a “a true explosion in scientific discovery.”
 
“If you look at autism, last month alone we reported on six completely novel genes,” Zerhouni said. “We need to exploit these discoveries at a rapid pace.”
 
To do that, he said, “We need to have access to all of the publications and all of the data sources of scientific information … we have over two million users a day coming NIH to look at our databases,” Zerhouni added. “This is used by the public, by teachers, by students, by patients, by their parents. Sixty percent of our patients now go to the doctor with information extracted from these databases.
 
“We know now that to make progress we will need to interconnect all of the discoveries we’re making… because the real value is in the full connectivity, not just in the posting of the passive documents,” Zerhouni said.
 
Zerhouni responded to Frank’s general argument that the NIH policy is going to bleed the journals dry of money over time by saying, “You don’t want to outlaw Google just to preserve newspapers, that’s not what the world is about today.”
 
Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition who fought for the NIH to adopt the policy, gave the committee the taxpayers’ case that because citizens fund the research they should not have to pay for it twice.
 
She also told the committee that as a mother who recently found out her five-year-old son has diabetes, she knows what it means to search through papers online seeking the latest data about a specific illness.
 
“The NIH policy in no way conflicts with US copyright law,” she continued
 
“The legislation is not in the best interests of the taxpayers who fund the research, the scientific community, or the public who relies upon it,” Joseph said in closing. 

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