Fair Copyright in Research Works Act neither fair nor encouraging of research, film at 11

Yes, it's been awhile. The semester started, and that means I've been embroiled in the sorts of things one does in the library when the semester starts: library research instruction, juggling serial subscription renewals, and trying to keep the mail from overtaking both my inbox and my desk. (My mailbox is rather small, so I can only ignore it for so long.)

But while the public's attention is fixed (not without reason) on bailouts and elections, a post at Au Courant brings the Fair Copyright in Research Works Act to my attention. Really, once the open access movement started to gain a bit of traction, this sort of thing was only a matter of time. And one thing you can bet on: any piece of legislation that uses both the words "fair" and "copyright" in its title isn't going to be fair at all.

The proposed act is an amendment to Title 17 which, as most anyone reading this probably already knows, is the part of the U.S. Code that pertains to copyright. Specifically, it proposes to amend Section 201, which pertains to ownership of copyright.

What it does is add new limitations on the federal government. Now most people I know, regardless of their political affiliations, have no objection to this, especially considering the bloat of the current administration. But let's take a look at the language.

The amendment specifically pertains to "extrinsic works". What's an extrinsic work? Glad you asked. It's defined in paragraph 3 of the proposed amendment, as follows:

(A) EXTRINSIC WORK- The term 'extrinsic work' means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and--

So this refers to a work that is funded, but not created, by a Federal agency; "funding agreement" is defined later in the act. What's under discussion here is, in essence, federally funded research: meaning, for instance, biomedical research funded through NIH grants.

'(i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party; or'

The work, therefore, is being funded by other entities in addition to the Federal agency. This is hardly unusual, especially in STM (science, technology, and medicine) research; few grants are big enough to fund what constitutes a major research project these days.

'(ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party.

This is where, in my opinion, the language starts to hedge. So it's not necessary to actually be receiving funding from another entity, as long as that other entity is adding meaningful value or process to the work.

Such as, for instance, publishing it. Remember that we're in Title 17, here.

Okay, so that's an extrinsic work. What are the limitations so imposed? Here's the first part of paragraph 1 of the proposed amendment:

(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement--

`(A) impose or cause the imposition of any term or condition that--

`(i) requires the transfer or license to or for a Federal agency of--

`(I) any right provided under paragraph (3), (4) or (5) of section 106 in an extrinsic work; or

This is pretty clear. It says that the funding agreement can't stipulate the transfer of rights provided under paragraphs 3, 4, or 5 of section 106. These are, briefly put, the right to distribute copies, to perform works publicly, and to display works publicly. In other words, the rights by which copyright holders enable the sale of books and magazines, the staging of theatrical productions, the showing of movies, and so forth.

In other words, this goes directly to the open access mandate which went into effect in April 2008, which stipulates that all NIH-funded research must be made available to the public via PubMedCentral within 12 months of its publication.

Don't think so? Take a gander at this next bit:

`(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

Availability to the public. Paragraphs 1 and 2 pertain to making copies and producing derivative works. This act wouldn't touch any of that--except insofar as it involves making the work available to the public.

`(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

This just means that in addition to transferring these rights, the agreement also can't require these rights to be nonexistent or abandoned.

`(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

In addition, the prohibitions previously described can't be a condition of receiving funding in the first place.

`(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.

This wording is a bit confusing, but essentially what it boils down to is that the Federal agency can't assert Title 17 rights over existing material where the funding agreement has already restricted those rights--thereby, it seems to me, covering work released between April 2008 and whenever this act, should it pass, goes into effect.

Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.

Now I find this bit pretty alarming. It seems to be saying that if there's anything anywhere in Title 17, now or in the future, that contradicts A, B, or C, it is now void. I can see that having an ill effect for libraries.

On to paragraph 2:
`(2) CONSTRUCTION-

`(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

So the copyright owner can still do what he/she likes with regard to copying and derivative work. No surprises there.

`(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

Section 102, for any of you who aren't aware, defines what can be copyrighted. Again, no surprises there.

The next bits come from paragraph 3, where extrinsic works are also defined:

`(B) FEDERAL AGENCY- The term `Federal agency' means any department, agency, or instrumentality of the United States Government.

`(C) FUNDING AGREEMENT- The term `funding agreement' means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.'.

Prescient of them. Yes, right now the only Federal open access mandate applies to NIH-funded works. This proposed act applies to any works funded by any Federal agency. Such as, for example, the NEA. Or the NSF. Or any other Federal agency you can think of that funds research. The Federal government is one of the biggest, if not the biggest, source of research and grant funding in this country. Think about what this means for public access to Federally-funded material.

(b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.

Of course. You can't make it retroactive--although it seems to me that paragraph 1, subsection C sort of does.

(c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register's views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.


I have to admit, I'm having difficulty reining in my snark at this point. It isn't at all surprising that publishers want to control access to material that they publish; this entire proposal is just another salvo in a long-running battle.

I also have to admit, however, that it positively blows my mind that publishers honestly seem to think that they have this much authority to control access to research that they had no part in funding. Well, you could argue, but they control access to research funded from other sources, right?

Yes, they do. And isn't it interesting that their role has shifted from publishing--which is, fundamentally, about making information available--to controlling access to that information.

The difference is, that's not taxpayer-funded research. If something is made possible through a grant from NIH, NSF, NEA, or another Federal agency, then you paid for it. You ought to have access to it.

You can read more about this at Peter Suber's blog (which I recommend reading generally), and follow the links there to further commentary. In particular, also look here, where much more detailed analysis than my novice's take is available, including considerable discussion of why this is just bad law.

Congress reconvenes in January. At some point after that, the bill may come out of committee--or sail through attached to another bill, as so often happens.

If open access matters to you--and if you pay taxes, it should--contact your Congresscritters. Many of them have no idea why this is important, for reasons that Suber describes. Enlighten them.