[LIS-Forum] The Sabo Bill and Open Access

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Date: Wed, 21 Jul 2004 12:59:52 +0530
From: Subbiah Arunachalam <arun at mssrf.res.in>

Friends:
Here is a report from Open Access Now, dated 19 July 2004.

  Sabo bill sparks copyright controversy

When Congressman Martin O. Sabo introduced a bill in the US House of
Representatives on June 26 that would make research funded by the American
government exempt from copyright protection, he had no idea of the
controversy it would generate amongst the research and publishing
communities.
"Some of my staff brought the issue to my attention and I thought it made a
lot of sense, so I introduced the bill," said Sabo, a Democrat
Representative from Minnesota. "I have discovered that it's generated lots
of interest and lots of controversy. There are lots of scientists who are
very interested. And clearly there are people involved in the publishing
industry who are making the case for their role in the whole process."
Currently, work produced by federal employees is exempt from copyright
protection, but this doesn't cover grant recipients. The bill, officially
called the 'Public Access to Science Act' but also referred to as the 'Sabo
bill', aims to amend existing US copyright law so that research that has
been "substantially funded" by the US federal government can also not be
copyrighted, ensuring its free availability to the public.
"The bill is really fairly simple. I think that it's a fundamental principle
that research that has been funded by the public sector should be generally
available to the public free of charge," Sabo told Open Access Now. He feels
strongly that US residents shouldn't have to pay twice - once through
taxation to fund research and a second time to gain access to the results.
-------------
It's a fundamental principle that research that has been funded by the
public sector should be generally available to the public free of charge. --
Martin Sabo
-------------
"It's wrong when a breast cancer patient cannot access federally funded
research data paid for by her hardearned taxes," said Sabo in a press
statement. "It is wrong when the family whose child has a rare disease must
pay again for research data their tax dollars already paid for. 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, and my legislation will do just that."
When pushed on what "substantially funded" means, Sabo concedes "We haven't
quite sorted that out yet. We'll have to define that either by law or
regulation and come up with a more precise definition of the percentages."
The fact that "substantially" is not defined in the bill might allow the
many federal agencies that fund research to define it in their own ways.
Peter Suber, an Open Access pioneer at Earlham College, USA, has called the
Public Access to Science Act "the boldest and most direct legislative
proposal ever submitted on behalf of Open Access," and has made suggestions
that he feels would enhance the bill's effectiveness. "Putting works into
the public domain and obtaining copyright - holder consent to Open Access
are not themselves Open Access," explains Suber. "They are merely two ways
to clear the legal path to Open Access."             "The Public Access to
Science Act could go further and require actual Open Access. It could
require funded researchers to submit their work to Open Access journals or
deposit it in Open Access archives." Suber suggests additional measures to
ensure that copyright legislation accelerates the switch to Open Access.
"[The bill] could require federal research grants to cover the processing
fees charged by Open Access journals - that is, [it] could treat Open Access
publication as a cost of research." This approach is already being taken by
some funding agencies, such as the Howard Hughes Medical Institute (see Open
Access Now, July 14, 2003).
The Sabo bill has sparked heated debate within the life sciences community
about the importance of copyright and the role of traditional publishers.
The bill is supported by the Public Library of Science (PLoS), a non-profit
organization that is developing models for Open Access publishing, but some
have questioned the consequences of removing copyright protection.
Michael J. Held, Executive Director of Rockefeller University Press (RUP),
calls the bill "a hasty and ill-timed measure". In an editorial in the
Journal of Cell Biology, Held wrote "I take issue with a number of the
points made by the Sabo Act. It appears to me that this is a thinly veiled
attempt by Harold Varmus and the other founders of the Public Library of
Science (PLoS) to eventually force all publishers into their Open Access
publishing model. As this publishing model is unproven and may well be
unsustainable, this is an irresponsible act."
Held says that "publishers such as RUP seek to hold secure copyright so that
we can ensure that we have both the legal right and the resources to
guarantee free access, albeit after a brief interval." Held's editorial was
freely available online prior to publication, to ensure that it reached a
wide audience.
The Association of American Universities (AAU) has also opposed the bill. In
a letter to Sabo's office, AAU president Nils Hasselmo expressed the view
that denying copyright protection for publications resulting from federally
funded research was unnecessary and could prove "quite harmful to the
nation's research enterprise." He maintains that copyright protection is
important for assuring accuracy and authenticity of publications and
maintaining the current publishing process.                     The senior
editors at PLoS have written a reply to Held and other critics who have,
among other points, raised the specter of increased plagiarism in the
absence of copyright protection. "Although some concern has been voiced
about the consequences of excluding copyright protection, its removal will
not leave authors or their works vulnerable to abuse," they say. "Copyright
has not been used by publishers or individual authors to protect the
integrity of the scientific literature. Rather, rigorous standards of
behavior within the scientific community have provided the best deterrent
from abuse (including against acts of plagiarism and misuse of another's
work)."
Sabo is undeterred by the opposition his bill has met. "Clearly anytime that
you are doing something different there are going to be people who are
apprehensive and nervous about that. I have already heard from publishers
expressing their concern and I am sure there will be others. People in the
publishing business will continue to have an important role but it will
involve some change for them. But I have also heard from lots of people
supporting the bill. This is just the beginning and it will probably take a
while. But we are going to be pushing forward."
Since the bill's introduction, comment on the issue of access to research
data has been made at a meeting of the House Appropriations Committee, which
allocates the federal budget for the National Library of Medicine (NLM) -
next year's budget will be US$316 million. The Committee commended the NLM
for its leadership in developing PubMed Central (see Open Access Now, July
28, 2003) and expressed its concern about "reports that there has been a
significant change in the availability of research data internationally and
a dramatic rise in medical research data subscription costs. NLM is
encouraged to examine how the consolidation of for-profit biomedical
research publishers, with their increased subscription charges, has
restricted access to vital research information to not-for-profit
libraries." The Committee asked for a report by March 2004 on ways to ensure
that taxpayerfunded research remains in the public domain and to alleviate
restrictions on the availability of information.
---------------------------
The Public Access to Science Act is the boldest and most direct legislative
proposal ever submitted on behalf of Open Access ---Peter Suber

 ----------------------------
The Sabo bill is likely to generate other legislative fallout. "I hope it
has impact in other countries too," says Congressman Sabo. Already there are
signs in the UK that the call for Open Access to government-funded research
is moving from the academy to the legislature. Dr Ian Gibson, UK Member of
Parliament for Norwich North and Chairman of the House of Commons Select
Committee for Science and Technology, has submitted a question to the new UK
Secretary of State for Health that asks "what plans he has to ensure that
all publicly funded research is recorded and made freely available to
patients, health professionals, the public and members of the scientific
community." Health Secretary John Reid is expected to answer Gibson's
question by September 8.
The Sabo bill will now go to a series of hearings and committees, starting
with the Judiciary committee. "It's a long process that could take many
months. Our system moves slowly," says Sabo. "I have no guarantee that it
will become law. But we are expecting to stimulate lots of debate about this
important issue."
----------------------
Public Access to Science Act
108th CONGRESS 1st Session
H. R. 2613 To amend title 17, United States Code, to exclude from copyright
protection works resulting from scientific research substantially funded by
the Federal Government.
IN THE HOUSE OF REPRESENTATIVES
June 26, 2003 Mr. SABO (for himself, Ms. KAPTUR, and Mr. FROST) introduced
the following bill; which was referred to the Committee on Judiciary
A BILL
To amend title 17, United States Code, to exclude from copyright protection
works resulting from scientific research substantially funded by the Federal
Government. Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Public Access to Science Act'.
SECTION 2. FINDINGS.
The Congress finds that -

(1) the United States Government funds basic research with the intention and
the belief that the new ideas and discoveries that result from the research
will improve the lives and welfare of the people of the United States and
around the world;

(2) works of the United States Government are beyond the reach of copyright
protection so that they will be freely available for the benefit of the
people of the United States;

(3) the United States Government spends $45,000,000,000 a year to support
scientific and medical research whose product is new knowledge for the
public benefit;

(4) the Internet makes it possible for this information to be promptly
available not only to every scientist and physician who could use it to
further the public good, but to every person with access to the Internet at
home, in school, or in a library; and

(5) United States Government funded research belongs to, and should be
freely available to, every person in the United States.
SECTION 3. COPYRIGHT STATUS OF WORKS SUBSTANTIALLY FUNDED BY THE FEDERAL
GOVERNMENT.
(a) FUNDING AGREEMENTSSection 105 of title 17, United States Code, is
amended -

(1) by striking 'Copyright' and inserting '(a) IN GENERAL - Copyright'; and

(2) by adding at the end the following: '(b) FEDERALLY FUNDED WORKS -

'1) IN GENERAL- Copyright protection under this title is not available for
any work produced pursuant to scientific research substantially funded by
the Federal Government to the extent provided in the funding agreement
entered into by the relevant Federal agency pursuant to paragraph (2).

'(2) PROVISION IN FUNDING AGREEMENTS- Any Federal department or agency that
enters into a funding agreement with any person for the performance of
scientific research substantially funded by the Federal Government shall
include in the agreement a provision that states that copyright protection
under this title is not available for any work produced pursuant to such
research under the agreement.

'(3) REGULATIONS- Each Federal department or agency that enters into funding
agreements to which paragraph (2) applies shall issue regulations to carry
out that paragraph.

'(4) DEFINITION- In this subsection, the term 'funding agreement' means any
contract, grant, or cooperative agreement entered into between any Federal
agency and any person for the performance of scientific research funded by
the Federal Government. Such term includes any assignment, substitution of
parties, or subcontract of any type entered into for the performance of such
research'.

(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply to any
funding agreement (as defined in section 105(b)(4) of title 17, United
States Code, as added by subsection (a) of this section), entered into on or
after the date of the enactment of this Act.
SECTION 4. SENSE OF CONGRESS.

It is the sense of the Congress that any Federal department or agency that
enters into funding agreements (as defined in section 105(b)(4) of title 17,
United States Code, as added by section 3(a) of this Act) should make every
effort to develop and support mechanisms for making the published results of
the research conducted pursuant to the agreements freely and easily
available to the scientific community, the private sector, physicians, and
the public.