R EIMAGINING L AW AND E CONOMICS The National Institutes of Health Publishing Controversy 26/06/2013 Charlotte Tschider, Hamline School of Law

» A GENDA U.S. Copyright Foundations U.S. Funding Process Existing NIH Publishing Model Current Publishing Controversy Contract Law and Legal Interpretation Economics of the Controversy Recommendations

» U.S. C OPYRIGHT F OUNDATIONS Applicable Law: Statute of Anne (1710) U.S. Constitution (1789) Copyright Act of 1976 Berne Convention (U.S. 1988) Strict interpretation by U.S. courts, dichotomy Europe, also strict interpretation Image:

» F OCUS ON P UBLIC S PHERE Statute of Anne “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned” (Great Britain, 1710). U.S. Constitution “The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (United States, 1789).

» A UTHOR ’ S R IGHTS Focus on author’s rights, but foundations of copyright in property law mean rights can be transferred Focus on natural rights, that the right to one’s expression is inalienable, singular, and work is minimally “original” if protectable Less focus on rights of consumers in copyright law, except when attempting to claim exclusive rights over work already in public sphere.

» P UBLISHING C ONTROVERSY Rise of OA in sciences – Public Library of Science Impact Factor – Continuing publishing pressure Research Works Act – Elsevier and American Publisher’s Association Cost of Knowledge Boycott NIH/NSA - Funding requirements Library funding reductions – Price increases Image:

» U.S. F UNDING P ROCESS Government decides budgetary allocation for NIH Potential Recipient drafts proposal NIH Administration selects top proposals NIH signs contract with recipient NIH deposits funding in accounts Recipient publishes work Recipient deposits work in PubMed Central

» L EGAL A CTION IN C ONTRACT Establishing legal action Approach of courts in copyright suits Government-owned Intellectual Property “Material term” v. condition and breach Breach = compensation for contractual duty Law and economics, an out – Richard Posner

» T ENETS OF L AW AND E CONOMICS Legal rules ought to be efficient. Legal processes should select for efficient rules. When the market can resolve legal issues, it should. Image: image/image/Posner,%20Richard% jpg

» C ALCULATING V ALUE Previous Model NIH can pursue legal action NIH articles in for-profit journals General public pays to access articles World pays for journals Publishers retain rights Limited use of articles New Model No legal action NIH articles provided free in Pub Med and others General public pays nothing to access articles World accesses free articles Authors retain rights Maximization of article use

» P REVIOUS M ODEL

» N EW M ODEL

» P UBLISHING BY THE N UMBERS MeasurementDescription $50 BillionAmount U.S. Taxpayers pay every year for science funding $450KAverage funding given to each Principal Investigator 20XFactor estimated for govt. reinvestment through OA 72:1Increased capacity for OA versus traditional for the same $ 7%Current Compliance in the U.S. (UK 5%) 1Average articles per year published/eligible academics 97Average articles consumed per year by academics $2000/$35Average journal subscription cost/cost per paper 11%Increase in journal cost between 2011 and %+Cost increase between 1984 and %Number of research institutions with 2 or fewer subscriptions 37-40%Margin of top four scientific publishers

» K NOWLEDGE R EUSE F ACTOR (E XPONENTIAL ) Articles published faster can dramatically increase scientific development speed. OA to information dramatically increases citation overall for specialized and public. OA to information results in maximized use across the world. Strong ROI for governments who invest. Authors may reuse for other purposes.

» N EW R EQUIREMENTS – U.S. F UNDING “NIH will delay processing of an award if publications arising from it are not in compliance with the NIH public access policy.” “A grantee’s failure to comply with the terms and conditions of award may cause NIH to take one or more enforcement actions, depending on the severity and duration of the non- compliance. NIH will undertake any such action in accordance with applicable statutes, regulations, and policies.” “The awardee institution is responsible for meeting the terms and conditions of award, which includes ensuring any agreements with third parties, allow compliance with the NIH public access policy. ”

» R EQUIREMENTS – EU/UK S CIENCE F UNDING European Commission: Pilot to drive OA in FP7, “required to make best efforts” Horizon 2020: European Commission OA Wellcome Trust: Requires OA depositing (UK). Variety of private funding organizations Images:

» R ECOMMENDATIONS Make contractual language highly explicit “material term.” Make OA requirement specific, not general. Include language in all other materials (website, contracts). Reduce or remove acceptable “lag time” for publication. Withhold funding to encourage compliance. Formally warn non-compliant recipients about impending legal actions. Enforce using legal methods to protect public interest and emphasize economic inefficiency.

» B ROADER I MPACT Without a large change implemented by law, the Impact Factor culture will remain. Without a large number contracts with non- exclusive rights, the publishing industry will continue writing exclusive contracts. OA is continuing to grow, but not fast enough to change the culture, even in the sciences.

T HANK Y OU