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Open Access Advocates Release Copyright Law Primer for Navigating New NIH Policy

NEW YORK (GenomeWeb News) - Just over a month before the National Institutes of Health's new open access policy takes effect, an advocacy group has issued a paper explaining how the rule will affect copyright practices.
Today, the Scholarly Publishing & Academic Resources Coalition and Common Science, both of which ardently supported the adoption of the public access law, released a joint white paper with the Association of Research Libraries to explain how to navigate the new copyright tableau as it will look under public access law. 
The document follows on the heels of a letter that US Senator Arlen Specter (R – Pa.) sent to NIH Director Elias Zerhouni two weeks ago, in which he said he was “concerned” that the that the rule may complicate copyright policy and that the NIH “is not taking the appropriate steps to seek out and take into account the advice of the publishers.”   
The new mandate, which takes effect on April 7, states that NIH-funded investigators must submit electronic versions of their final, peer-reviewed manuscripts to the National Library of Medicine’s PubMed Central within 12 months after they are originally published.
Specter noted that the Senate report that accompanied the law, which passed as a tiny measure in a huge omnibus spending bill at the end of 2007, stated that the NIH should “seek and carefully take into account the advice of journal publishers on the implementation of this policy.”
Specter claims the NIH has not done enough of a job “seeking the advice and comment of journal publishers, scientists, and other interested parties.”
Specter also said the NIH’s notice regarding the implementation of the law failed to include specifics regarding how to implement the policy in a way that is consistent with copyright law.
The NIH has not responded publicly to Specter’s letter.
The copyright policy white paper released today was written “primarily for policymaking staff in universities and other institutional recipients of NIH support,” SPARC said in a statement.
Villanova University law professor Michael Carroll, who wrote the paper, makes clear that grantees must depend on authors to ensure that they are in compliance with the public access policy. Because of that, compliance depends upon “an explicit understanding between the author and the grantee about how the manuscript and the copyright in the manuscript are managed.”
According to Carroll, copyright management under the new law includes six options for grantees:  
  • Grantees may rely on authors but also request or require authors to take responsibility for amending publication agreements.
  • They may choose to help authors negotiate the scope of copyright transfers by advising authors or acting as agents in negotiations.
  • Grantees can enter into side agreements with NIH-funded authors giving the grantee a non-exclusive copyright license allowing it to grant NIH the Public Access License.
  • Another non-exclusive license also gives the grantee the ability to make some uses of an article, including posting a copy in a publicly accessible digital archive or repository, and allowing the article to be used in connection with teaching.
  • Grantees and publishers also may agree that the publisher is obligated to submit the manuscript and to grant NIH permission to make the manuscript publicly accessible.
  • Grantees also may instruct authors to submit manuscripts to journals that already have binding deposit agreements with the NIH, or to journals with copyright agreements that allow authors the rights to make the manuscripts publicly accessible.
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