A February 13, 2008 posting on this blog, "Significance Of Recent NIH Research Deposit Law", reported on the passage,as part of “Consolidated Appropriations Act of 2008”, of a new NIH deposit law that required authors of NIH-funded (National Institutes of Health) research, to deposit a digital copy of their results within 12 months for inclusion in PubMed Central, a public database managed by NIH and NLM ( National Library of Medicine).
A recent Library Journal item, "NIH Mandate Seems To Work", indicates that the new policy is projected to have reasonable compliance rates of around 55–60 percent which compares to around four percent before the new policy was in place. But barely 6 months after the new policy, journal publishers are still resisting the changes by trying to depict their situation as a "weakening of their copyright protections", rather than the protection of a business model that was one-sided to begin with and is being overtaken by the needs of researchers to freely distribute their work to effectively advance their scientific work.
Congressman Conyers has introduced H.R. 6845, the so-called " Fair Copyright in Research Works Act" which would prevent federal funding agencies from requiring grantees to transfer any rights or licenses to the government as a condition of funding, for any works (1) even partially funded by a source other than a US federal agency and (2) even partially reflecting the "meaningful added value" of any other party. The bill would not only overturn the NIH policy, but block similar policies at every other federal agency.
"In their rhetoric, publishers speak as if they are the copyright holders for these articles, and as if the NIH is blocking their full exercise of these rights or even expropriating them. But that is uninformed or deceptive. Because the NIH requires grantees to retain a key right, NIH-funded authors now transfer less than the full bundle of rights to publishers. Publishers don't like that, and it may be a problem for them, but it's not a legal problem.
Despite their pose, publishers are not the copyright holders in these articles, without qualification, even after authors sign copyright transfer agreements. The NIH method of avoiding infringement means that there are plural rightsholders and divided rights in these articles: the authors have retained at least one and publishers have the rest. Publishers don't acquire the key right which would allow them to deny permission for OA or claim infringement or expropriation. As for the rights publishers do acquire, the NIH policy does nothing to diminish publisher freedom to hold and exercise them...
The unsound compensation argument becomes dishonest when publishers disguise it as a copyright argument and introduce a hint of entitlement. There is nothing in copyright law requiring authors to transfer all rather than some of their rights to publishers, and there is nothing in copyright law protecting publishers from the risks of their own business decisions. It's dishonest to suggest that the letter or the spirit of copyright law should assure publishers of undiminished revenue or save them from hard bargaining.
Publishers can complain that authors and funding agencies are waking up to the bad contracts authors have been signing with publishers, and waking up to their interest in retaining the right to authorize OA. But that's life in a changing world. They can complain about the end of easy pickings, but they can't pretend that the easy pickings were ever an entitlement or that the end of easy pickings is inconsistent with law, any law."