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Legal Probe Killing the Copyright

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By Meredith W. Salisbury

 

Scientists, and in particular bioinformaticists, have been abuzz lately with word of the so-called Sabo bill, more officially known as the proposed Public Access to Science Act. Introduced at the end of June by Representative Martin Sabo (D-Minn.) and supported by fellow representatives Martin Frost, Marcy Kaptur, and Betty McCollum, the bill seeks to do away with copyright protection for “works resulting from scientific research substantially funded by the federal government.”

The idea, says Sabo, who originally got the idea for this from a conversation with state constituents, is that “common sense dictates we provide the most cutting-edge research to all who may benefit from it — especially when they’ve already paid for it with their tax dollars.”

Normally, this would be the paragraph where I’d explain more precisely what that means, and give you a sense of what this bill means for your research. In a minute, you’ll see why you’re reading this disclaimer instead.

Perhaps not surprisingly, some of the major scientific groups vehemently oppose the bill. Bob Wells, president of the Federation of American Societies for Experimental Biology, a group representing some 60,000 scientists, fired off a letter to Sabo noting how devastating this bill could be for the scientific community. Though FASEB supports the idea of improved access to research results, Wells writes, “by denying copyright protections to scientists and their publishers, [the bill] will dramatically reduce publishing revenues without reducing the costs of scientific publishing.” Without that money, he argues, peer-reviewed journals will not be able to produce the quality of data for which they are known.

The Association of American Universities, which comprises more than 60 member institutions from Caltech to the University of Wisconsin to Duke, also voiced its opposition to the bill. In his letter to Sabo, President Nils Hasselmo contends that the copyright is an important IP incentive for scientists as well as tech transfer offices, and is critical for future commercialization of the basic research. He also adds that “the bill would apply well beyond publication of journal articles, affecting copyrighted works such as computer software.”

Aha! The crux of the problem. What exactly are “works resulting from scientific research”? Supporters of the bill say they don’t think Sabo intended to strip copyright protection from software; people from the congressman’s office couldn’t give a firm answer. Give me a break. The courts are already busy trying to divine the intentions of lawmakers in office 200 years ago — surely there’s a lesson there about the pitfalls of vaguely worded legislation.

So there’s no clear definition of what “works” includes or excludes. (Maybe everyone takes his pick?) How about “substantially funded”? Is it 90 percent? Fifty? Fifteen? The bill mandates that any federal funding agency comply with the bill — good luck with that — and add sections to grants, contracts, or cooperative agreements detailing that no copyright is available for the work funded. Opponents argue that this will put a damper on public/private collaborations.

Both proponents and detractors of this bill have arguments worth consideration. Making scientific research more accessible to the public is obviously a commendable goal, but this bill needs to be rewritten before it can accomplish that. Perhaps the good thing that will come from it now is the debate it’s sparked on how best to arrange for public access, since nearly everyone agrees that that’s a good cause.

When he released this bill in June, Sabo said, “It defies logic to collectively pay for our medical research, only to privatize its profitability and availability.” I’ll give him that. But speaking of things that defy logic, how about the idea of passing a bill that people don’t even understand when it’s introduced, let alone when it’s made law and someone has to enforce it?

 

Meredith Salisbury, managing editor of Genome Technology, can be reached at [email protected] genomeweb.com. Her Legal Probe column on legal and IP issues affecting the genomics industry appears bimonthly.

 

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