REIMAGINING LAW AND ECONOMICS

The National Institutes of Health Publishing Controversy

26/06/2013

Charlotte Tschider, Hamline School of Lawctschider01@hamlineuniversity.edu

» AGENDA

• 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. COPYRIGHT FOUNDATIONS

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: http://library.umhb.edu/libguideimages/Denise/copyright.gif

» FOCUS ON PUBLIC SPHERE

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).

» AUTHOR’S RIGHTS

• 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.

» PUBLISHING CONTROVERSY

• 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: http://ipkitten.blogspot.co.at/2012/03/cost-of-knowledge.html

» U.S. FUNDING PROCESS

1

2

3

45

6

7

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

» LEGAL ACTION IN CONTRACT

• 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

» TENETS OF LAW AND ECONOMICS

• Legal rules ought to be efficient.• Legal processes should select for

efficient rules.• When the market can resolve

legal issues, it should.

Image: http://www.law.uchicago.edu/files/imagecache/sidebar-image/image/Posner,%20Richard%2008-10.jpg

» CALCULATING VALUE

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

» PREVIOUS MODEL

» NEW MODEL

» PUBLISHING BY THE NUMBERSMeasurement Description$50 Billion Amount U.S. Taxpayers pay every year for science funding$450K Average funding given to each Principal Investigator20X Factor estimated for govt. reinvestment through OA72:1 Increased capacity for OA versus traditional for the same $7% Current Compliance in the U.S. (UK 5%)1 Average articles per year published/eligible academics97 Average articles consumed per year by academics$2000/$35 Average journal subscription cost/cost per paper11% Increase in journal cost between 2011 and 2013400%+ Cost increase between 1984 and 200168% Number of research institutions with 2 or fewer subscriptions37-40% Margin of top four scientific publishers

» KNOWLEDGE REUSE FACTOR (EXPONENTIAL)

• 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.

» NEW REQUIREMENTS – U.S. FUNDING

• “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. ”

» REQUIREMENTS – EU/UK SCIENCE FUNDING

• 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: http://blog.europepmc.org/, http://www.coar-repositories.org/, http://www.openaire.eu/en/open-access/mandates-a-policies

» RECOMMENDATIONS

• 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.

» BROADER IMPACT

• 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.

THANK YOU