The Research Works Act: Intellectual Property v. Open Access

By: Jessica Lamb

In the shadow of SOPA and PIPA, let us consider another bill in the battle between free exchange of information and the price of intellectual property – The Research Works Act (RWA).  This bill would make illegal open access policies such as the one put in place by the National Institutes of Health (NIH).  This policy requires that articles resulting from NIH grant-supported research be uploaded to PubMed, a free online database, within a year of publication.

The problem some organizations have with this policy is that many of these papers are published in private, subscriber-funded journals under copyright protection.  The NIH policy essentially forces these journals to make their intellectual property (IP) freely available.  The Association of American Publishers released a statement saying the RWA prevents “regulatory interference with private-sector research publishers in the production, peer review and publication of … scholarly journal articles.”  They also implied the act protects individuals from being compelled to sign over copyright due to government policy.

Traditionally, these private-sector research publishers facilitate submission of raw manuscripts and help edit the final proofs.  They also print periodicals for libraries and individuals that continue to prefer paper and archive their past editions.  Perhaps most importantly, they give credibility to their content by facilitating peer review.  Ideally, peer review is a scientific editorial process whereby volunteer scientists screen manuscripts, reject ones that are scientifically unsound, and offer improvements.  For all of these reasons many scientists look to peer-reviewed publications as reliable sources of research articles.  Forcing these publishers to give up their IP certainly could be seen as burdensome government interference.

How does the NIH justify this interference?  The open access policy is based on the philosophy that the results of publicly funded research should be freely available.  Furthermore, the year of exclusive rights left to the journals does ensure that most subscribers will continue to give the journals their business.  While scientific journals certainly add value to the content they produce, the fact remains that the vast majority of the intellectual effort put into their product is the work of the researchers, who are expected to sign over copyright to the publishers.  Neither the scientists, nor their institutions, nor their funding agencies are compensated.  The majority of the IP the journals are seeking to protect they obtain for free.

Interestingly, in 2008 the “Fair Copyright in Research Works Act”, a bill of similar name and purpose, was introduced in the House and didn’t make it out of committee.  A year later, the “Federal Research Public Access Act of 2009”, which aimed to expand the open access policy to other funding agencies, was introduced in the House and Senate but suffered a similar fate.  The RWA, it seems, is just the latest volley in this battle and unlikely to be the last.

As a society we value the exchange of information, but we also value private enterprise.    When considering the RWA, Congress should weigh this conflict but also remember they are responsible to the taxpayer.  Is the best way to protect dissemination of peer-reviewed scientific inquiry making the public pay for research they’ve already funded?