    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

                      FAIR COPYRIGHT IN RESEARCH WORKS ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON COURTS, THE INTERNET,
                           AND INTELLECTUAL PROPERTY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 6845

                                   __________

                               SEPTEMBER 11, 2008

                                   __________

                               Serial No. 110-204

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
    ROBERT WEXLER, Florida               RIC KELLER, Florida
    LINDA T. SANCHEZ, California         DARRELL ISSA, California
    STEVE COHEN, Tennessee               MIKE PENCE, Indiana
    HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
    BETTY SUTTON, Ohio                   STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

        Subcommittee on Courts, the Internet, and Intellectual Property

                     HOWARD L. BERMAN, California, Chairman

    JOHN CONYERS, Jr., Michigan          HOWARD COBLE, North Carolina
    RICK BOUCHER, Virginia               TOM FEENEY, Florida
    ROBERT WEXLER, Florida               LAMAR SMITH, Texas
    MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr.,
    SHEILA JACKSON LEE, Texas            Wisconsin
    STEVE COHEN, Tennessee               ELTON GALLEGLY, California
    HANK JOHNSON, Georgia                BOB GOODLATTE, Virginia
    BRAD SHERMAN, California             STEVE CHABOT, Ohio
    ANTHONY D. WEINER, New York          CHRIS CANNON, Utah
    ADAM B. SCHIFF, California           RIC KELLER, Florida
    ZOE LOFGREN, California              DARRELL ISSA, California
    BETTY SUTTON, Ohio                   MIKE PENCE, Indiana

                         Shanna Winters, Chief Counsel

                        Blaine Merritt, Minority Counsel

                                C O N T E N T S

                                  ----------

                               SEPTEMBER 11, 2008

                                                                       Page

                                    THE BILL

    H.R. 6845, the ``Fair Copyright in Research Works Act''..........     4

                               OPENING STATEMENTS

    The Honorable Howard L. Berman, a Representative in Congress from
      the State of California, and Chairman, Subcommittee on Courts,
      the Internet, and Intellectual Property........................     1
    The Honorable Howard Coble, a Representative in Congress from the
      State of North Carolina, and Ranking Member, Subcommittee on
      Courts, the Internet, and Intellectual Property................    10
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, Chairman, Committee on the
      Judiciary, and Member, Subcommittee on Courts, the Internet,
      and Intellectual Property......................................    11
    The Honorable Darrell Issa, a Representative in Congress from the
      State of California, and Member, Subcommittee on Courts, the
      Internet, and Intellectual Property............................    14

                                   WITNESSES

    Dr. Elias A. Zerhouni, Director, National Institutes of Health,
      Bethesda, MD
      Oral Testimony.................................................    15
      Prepared Statement.............................................    19
    The Honorable Ralph Oman, Pavel Professional Lecturer in
      Intellectual Property Law Fellow, Creative and Innovative
      Economy Center, The George Washington University Law School,
      Washington, DC
      Oral Testimony.................................................    50
      Prepared Statement.............................................    52
    Ms. Heather Dalterio Joseph, Executive Director, Scholarly
      Publishing and Academic Resources Coalition, Washington, DC
      Oral Testimony.................................................    58
      Prepared Statement.............................................    60
    Dr. Martin Frank, Executive Director, American Physiological
      Society, Bethesda, MD
      Oral Testimony.................................................    71
      Prepared Statement.............................................    73

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan,
      Chairman, Committee on the Judiciary, and Member, Subcommittee
      on Courts, the Internet, and Intellectual Property.............    13

                                    APPENDIX

    Material Submitted for the Hearing Record........................    99

                      FAIR COPYRIGHT IN RESEARCH WORKS ACT

                                  ----------

                          THURSDAY, SEPTEMBER 11, 2008

                  House of Representatives,
          Subcommittee on Courts, the Internet,
                             and Intellectual Property,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 1:03 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Howard
    Berman (Chairman of the Subcommittee) presiding.
        Present: Representatives Conyers, Berman, Watt, Lofgren,
    Coble, Sensenbrenner, Goodlatte, Chabot, and Issa.
        Staff present: Shanna Winters, Subcommittee Chief Counsel;
    Christal Sheppard, Majority Counsel; Eric Garduno, Majority
    Counsel; Rosalind Jackson, Majority Professional Staff Member;
    Sean McLaughlin, Minority Chief of Staff and General Counsel;
    Blaine Merritt, Minority Counsel; and David Whitney, Minority
    Counsel.
        Mr. Berman. The Subcommittee hearing on the Fair Copyright
    in Research Works Act will come to order.
        First, I guess, a couple of just introductory points. One,
    since we don't have another Subcommittee hearing set between
    now and September 26, if we don't have a lame duck session, and
    I certainly hope we don't, but this could be the last hearing
    that I get to Chair with my dear friend, Howard Coble, who has
    been a really wonderful partner on so many issues, both when he
    was Chairman and now during the time I have been Chairman.
        And so I will miss doing that. I will still be down the row
    a few seats, but someone else will have the slightly dubious
    honor of sitting here.
        And I just want you to know how much I appreciate working
    with you, Howard, over the past couple of years and in the
    years before that----
        Mr. Coble. Thank you, Mr. Chairman.
        Mr. Berman [continuing]. When the situation was reversed
    slightly.
        And then I would like to very much thank Chairman Conyers
    generally and particularly on this issue and focusing the
    Subcommittee's attention on the impact of the NIH's open access
    policy on copyright law.
        Chairman Conyers introduced H.R. 6845, the ``Fair Copyright
    in Research Works Act,'' which deals with the extent of
    copyright protection for scientific journal articles.
        The Federal Government, through agencies like the National
    Institutes of Health and the National Science Foundation, fund
    billions of dollars in research every year. Much of this
    funding is provided to researchers in the form of grants.
        It is common practice for these researchers to write one or
    more articles concerning the findings of their research for
    publication in a scientific journal as a primary way of
    disseminating research results.
        Researchers who receive these grants have historically been
    free to copyright their manuscripts. This meant that
    researchers could assign their copyright in the manuscripts, if
    they so choose, and to whom they choose--or is it to who they
    choose?
        This has fostered a system whereby researchers frequently
    assign their copyrights to journal publishers, who, in turn,
    provide a peer review process for the manuscripts prior to
    publication.
        The peer review provided is a lengthy vetting process by
    experts to ensure the science discussed in the articles is
    sound. The costs of peer review are largely borne by
    publishers.
        This system has been successful in disseminating the
    information produced through publicly-funded research. Today,
    there are thousands of journals being published ranging from
    the well known New England Journal of Medicine to the more
    esoteric advanced journals, like Advances in Anatomic
    Pathology.
        These journals are widely available to the public either
    directly via subscription or through libraries and provide
    lengthy discussion of the results of federally-funded research.
        Critics of this system argue that the public should have
    free and unfettered access to scientific journal articles that
    discuss federally-funded research. Libraries, public advocacy
    groups and some Federal research funding agencies have pushed
    for implementation of open access policies applicable to
    federally-funded research projects.
        In 2008, a provision in the Consolidated Appropriations Act
    takes a significant step toward this goal.
        The provision gave the NIH authority to include within its
    research grant contracts the requirement that all grantees
    submit a copy of their peer reviewed manuscript for publication
    on the agency's PubMed Central Web site.
        Publication of the articles on PubMed Central is to occur
    no later than a year after initial publication of the journal
    in which they appear. Articles that appear on PubMed Central
    will be in PDF format and will be freely available to the
    public to read, download and print.
        Open access advocates argue that as a matter of principal,
    the public should have free access to journal articles because
    the public has already paid for the research results.
        Furthermore, they argue that the high cost of journal
    subscriptions effectively limits their availability to the
    public and that under NIH policy, journal publishers will
    retain the copyrights in their articles and that the publishers
    are in no danger of going out of business, because they make
    the bulk of their sales in the first year of publication.
        However, many publishers argue that while some may view the
    open access policy as simply a contract issue, the NIH mandate,
    in fact, undermines the rights of copyright owners by greatly
    eliminating the right to control the access distribution and
    copying of their works.
        Opponents also argue that this sort of open access policy
    jeopardizes the financial viability of most journal publishers.
    Publishers expect that many customers will likely forego
    continuing their subscriptions and simply wait for the articles
    to be freely available on PubMed Central.
        Ultimately, opponents argue, an open access policy will
    place both the peer review process and the current robust
    nature of scientific journal publishing at risk.
        The Fair Copyright and Research Works Act will essentially
    turn back the clock to the policy framework in effect prior to
    the 2008 Consolidated Appropriations Act. It prohibits Federal
    agencies from requiring researchers, as a part of a funding
    agreement, to assign our license back to the agency their
    copyright in extrinsic works.
        The act defines extrinsic works as any work where a third
    party either contributed funding for the research underlying
    the work or provided meaningful added value to the work.
        Meaningful added value in this context is meant to include
    providing a peer review process.
        I see merits to both sides of the open access debate. On
    the one hand, it is only natural for taxpayers to expect to
    receive the fruits of what they have paid for. Also, it is a
    fair question to ask whether copyright is promoting the
    progress of science and the useful arts if it results in a
    system where researchers can't afford access to protected
    works.
        On the other hand, journal publishers clearly provide a
    significant and valuable service to the scientific community in
    the form of peer review.
        What will happen to scientific publishing and the peer
    review process in the absence of a strong copyright incentive?
    It is a difficult question, indeed, and is one which requires
    substantial and careful review.
        Unfortunately, this Committee was never given an
    opportunity to evaluate the merits of the competing sides in
    the open access debate before the NIH mandate was made law in
    the 2008 Consolidated Appropriations Act.
        Today's witnesses, however, I am sure, will help catch us
    up on this issue and will provide guidance on the merits of the
    NIH mandate and of the bill before us.
        And with that, I am pleased to recognize the Ranking Member
    of the Subcommittee, my friend, Howard Coble, for his
    statement.
        [The bill, H.R. 6845, follows:]

        Mr. Coble. Thank you, Mr. Chairman.
        If this, in fact, is to be our ``Swan Song'' for this
    session, permit to say how much I have enjoyed being with you.
        I attended a reception this week, Mr. Chairman, and a
    former staffer came up to me and she said, ``For the past
    several years, I have enjoyed the Howard and Howard show.''
        And I recall when I had the gavel in my hand, Howard Berman
    was a very genial and able Ranking Member, and it has been my
    honor, Mr. Chairman, to have served as your Ranking Member, and
    I, too, have enjoyed the ``Howard and Howard'' show.
        Good luck to you in your other ventures, Howard. You are
    taking on bigger fish to fry.
        Mr. Berman. Thank you. And I do want to say that my
    reference to sort of the ``Swan Song'' was only in the context
    of formal hearings. There are dozens of bills I would like to
    sneak out in the last couple of weeks of session.
        Mr. Coble. I understand that.
        Mr. Chairman, thank you for calling today's hearing.
        Thank you all for being here.
        This is an important topic, as the Chairman just said, that
    intertwines the interests of taxpayers, intellectual property
    holders, and health care advocates, and I think it is safe to
    say that this is not your typical copyright issue.
        The National Institutes of Health is one of the largest
    sponsors of biomedical research in the world. The NIH operating
    budget for fiscal year 2008 is $29 billion, most of which is
    distributed through grant agreements to outside researchers.
        The agency maintains an online digital archive called
    PubMed Central, or PMC.
        Section 218 of the 2008 Omnibus Appropriations Act mandates
    that the NIH director require its grantee recipients to submit
    any peer reviewed manuscripts to PMC and provide NIH a license
    to make these works publicly accessible within 12 months after
    the date of publication.
        The House appropriators decided to create this mandate
    since the voluntary compliance rate among grantees during the
    previous 3 years was only 10 percent.
        Prior to enactment of this law, Mr. Chairman, you and I
    sent a letter protesting the implementation of the NIH policy
    to the Chairman and Ranking Member of the Appropriations
    Committee.
        Judiciary Chairman Conyers and Ranking Member Smith sent
    similar letters, and our participation was based on
    jurisdictional grounds. Since the new policy may affect the
    exclusive rights of copyright holders, I believe it is
    important that the Committee of authorizing jurisdiction, that
    is, Judiciary, conduct a hearing.
        I don't mean this in a bad way, but I think none of us
    wants the appropriators or anyone else, for that matter, doing
    our work for us.
        Private publishers of medical journals argue that they
    expend, on average, $3,000 to $4,000 to peer review and publish
    a quality article regarding a relevant health care topic. They
    emphasize that their only incentive to make such an investment
    is by acquiring the copyright in the article from the author,
    the NIH grant recipient.
        From the publisher's perspective, the NIH policy
    effectively reduces their exclusive right in a copyrighted work
    to 12 months. Further, in the absence of the value added by
    privately subsidized peer review and publication, publishers
    assert that less relevant medical information will be
    disseminated to the public in a timely manner.
        They argue that NIH is not in the business of evaluating
    individual studies and publishing the meritorious ones.
        Finally, the publishers maintain the NIH policy violates
    our international IP treaty obligations. Beyond this point,
    they believe our failure to repeal this policy will only
    encourage lax regard for IP globally, a conflicting message,
    since this Subcommittee has led the fight against overseas
    piracy and anti-counterfeiting.
        In contrast, NIH and its defenders wishing to disseminate
    medical knowledge more quickly and widely believe that
    recipients of Federal funding should be required to share their
    work products with the sponsoring public.
        They argue that the mandatory NIH policy only requires the
    grant recipients to provide the agency with a nonexclusive
    license. The authors may still transfer some or all of the
    exclusive rights under copyright law to a journal publisher.
        This is not a force transfer, as grantees don't have to
    accept Federal funds to conduct the research.
        Supporters of the NIH policy also maintain that the new
    mandate is consistent with our IP treaty obligation under TRIPS
    and the Berne Convention.
        In fact, NIH notes that Europe, Canada and Australia have
    amended their funding contracts and grant agreements to
    require, as a condition of support, that authors deposit their
    final manuscripts into publicly accessible online digital
    repositories.
        I am not personally a cosponsor of this bill yet, because I
    need more time to learn and think about the issue. Ultimately,
    our Subcommittee must decide whether the perpetuation of the
    NIH policy will promote or inhibit the development and
    dissemination of medical knowledge.
        Again, Mr. Chairman, this is a difficult, but a good
    hearing topic, and I look forward to hearing testimony from our
    witnesses, and yield back.
        Mr. Berman. Thank you very much.
        I am pleased to recognize the Chairman of the Judiciary
    Committee and the sponsor of the legislation on which this
    hearing is being conducted, Mr. Conyers.
        Mr. Conyers. Thank you, Mr. Chairman.
        We are beginning under some very questionable premises here
    this afternoon. First of all, these ``Swan Songs'' and farewell
    goodbyes are considerably premature, as I recall the history of
    what usually happens, under the circumstances that we have,
    between an election day and the swearing in on January 20.
        Mr. Berman. Change you can believe in?
        Mr. Conyers. Change you can believe in, yes, right.
        Mr. Issa. A candidate of change could also be part of that.
        Mr. Conyers. Everybody is claiming this change thing now,
    and it has got down to this Committee.
        Mr. Issa. Right. The Chairman of the Subcommittee is
    claiming change right here.
        Mr. Conyers. I know it. Now, look, my recollection of what
    happens between a presidential election and the swearing in is
    that there is an emergency session.
        I know hope is eternal and there is nothing wrong with
    hope, but for goodness sake, folks, I can imagine that either
    of the candidates that emerge successful. The leaders of the
    Congress, under the circumstances have not passed. We haven't
    even passed appropriation bills.
        This is a continuing resolution that is in front of us. So,
    we don't have an emergency. We don't even have an energy bill.
    We are not going anywhere, Members of the Committee. This is a
    good thing, from my point of view, but Howard Berman has been
    such an effective Chairman and has been interested in this
    subject for many years.
        But for my distinguished Ranking Member to say this is a
    complex subject on which he needs more time: How much time does
    he think he needs on this?
        We have had this thing for months, and months, and months,
    and he sent a letter, along with you, raising the questions
    that have led to this hearing.
        If I can loan the Ranking Member some staff or even meet
    with him about this, I am sure we could get him to become an
    enthusiastic cosponsor of the bill. We will make him even
    retroactively an original cosponsor.
        So, we began this subject examining whose jurisdiction this
    is in the first place.
        I hate to be so crass to raise these kinds of internal
    congressional questions, but here we have the powerful
    Committee on Appropriations that determines where every penny
    of the several trillion dollar budget goes in the United States
    of America and around the world now reaching into the sacred
    jurisdiction of the Judiciary Committee. In fact, the most
    powerful Committee in the Congress, and to take this subject of
    Intellectual Property and Copyright Law and decide to deal with
    it summarily, unilaterally, is incorrect.
        Now, why is this being done? The fact of the matter is that
    we have tried to communicate repeatedly with the leader of that
    Committee. The second most powerful Committee in the Congress,
    and what do we get? I have got three letters we are putting in
    the record written by various Members of the Committee.
        And what do we get? Nothing, I mean, not even a response,
    zero. In other words, the Judiciary Committee, you have got so
    many things to do, we have got more than you, so please don't
    bother us with letters about these questions about property,
    the National Institutes of Health and all of these kind of
    things, we have done it for you.
        And so we are forced now to have a hearing that will
    determine conclusion. We may be considered lucky to have even
    gotten the bill referred to us. They may have sent the bill to
    the Appropriations Committee, the way this show is getting off
    the tracks.
        We are here, first of all, to, without being offensive or
    belligerent, assert our jurisdiction. This is a subject matter
    for which Howard Berman and Mr. Coble, Darrell Issa, Mel Watt
    and other Members have spent years of work on.
        We don't come here with fixed attitudes about who is right
    and who is wrong. This isn't a slam-dunk situation. But it
    isn't the most complex subject that we have handled, either.
        I am happy to be here to begin to look at this for the
    first time with our Committee.
        Now, there are a lot of questions. I am going to put my
    statement in the record, since the bells have rung for a vote,
    and look forward to hearing from our four distinguished
    witnesses.
        I thank the Chairman for his time.
        [The prepared statement of Mr. Conyers follows:]
    Prepared Statement of the Honorable John Conyers, Jr., a Representative
      in Congress from the State of Michigan, Chairman, Committee on the
       Judiciary, and Member, Subcommittee on Courts, the Internet, and
                             Intellectual Property
        Let me begin by thanking my friend, Chairman Berman, for holding
    this hearing today on H.R. 6845 and for his longstanding commitment to
    dealing with the issue of copyright protection.
        Last year, he and I, along with Ranking Members Smith and Coble,
    sent letters to the House Committee on Appropriations to halt a
    proposed change in NIH policy. That policy, which went into effect in
    April 2008, mandates that NIH funded researchers submit copyrighted
    materials to the NIH for subsequent unfettered free publication on the
    internet.
        Although NIH policy is called ``Public Access,'' it should really
    be called ``Free Access'' because these documents are made available
    despite the non-government funds, private and non-profit, and other
    contributions made to published articles.
        Most importantly, neither this Committee nor the committee of
    jurisdiction on the Senate side had any input with respect to this
    policy, even though it has significant implications for intellectual
    property rights and the incentives for creative and scientific
    endeavors that are fostered by these rights.
        As a result of our shared concerns that this policy would set a
    worrisome precedent that could diminish--instead of increase the amount
    and the quality of scientific, technical, and medical information
    available to the public--we introduced this legislation.
        This bill will help restore the overall IP policy that was in place
    since the Bayh-Dole Act, Stevenson-Wydler, and the Copyright Statute
    were enacted. The congressional debates on these laws back then are
    equally relevant today. We expressly gave our Nation's scientists broad
    intellectual property rights in government-funded science to
    incentivize the advancement and dissemination of science and to allow
    for public private partnerships.
        Some claim that this issue inherently involves a matter of contract
    law and not copyright. I say that when the federal government drafts
    contracts in ways to specifically restrict the intellectual property
    rights of authors and copyright owners, it is inherently impacting
    intellectual property rights.
        In light of the fact that the NIH policy undeniably affects the
    bundle of rights that a person has in their intellectual property, our
    legislation is needed to stop this policy and prevent other agencies
    from following suit, while we consider the alternatives and
    consequences.
        In particular, we should explore the negative effects this policy
    will have on the constitutional directive of advancing science and the
    useful arts. Publishers have told us that this policy will harm
    scientific access not increase it.
        We should also consider its impact on the peer review process,
    which could possibly result in greater access, but much lower quality
    research. Sure, more people will have access, but the research will not
    have been vetted by knowledgeable individuals. How does that help
    promote the progress of science?
        In fact, smaller non-profit scientific societies may be forced to
    stop publications all together thus reducing the amount of scientific
    research available to the public or the cost of the peer review process
    will be shifted from the publisher onto the taxpayer to offset
    publishers losses.
        While NIH's goal of widely disseminating the results of publicly
    funded research is laudable, there are multiple alternatives to achieve
    that goal that do not have the negative consequences of the current
    policy. The National Science Foundation, for one, has such a policy
    that would disseminate research reports instead of the copyrighted
    material of the publishers.
        Accordingly, my bill, would stop the mandatory policy at any
    government funding agency and require a thorough study by the Register
    of Copyrights to determine the appropriate approach taking into account
    the IP implications and the effect on the peer review process.

        Mr. Berman. I thank you.
        Can we go to the witnesses?
        Mr. Issa. Mr. Chairman, if I could, briefly.
        Mr. Berman. Sure.
        Mr. Issa. First of all, I would like to thank the Chairman
    and the Ranking Member for allowing me to be an original
    cosponsor.
        Howard, your indecision gave me an opportunity, and I thank
    you, although, retroactively, you could be the original
    cosponsor on our side.
        I thank the Chairman for holding the hearing today. And
    very clearly, we are, as the Committee of jurisdiction--and I
    never say we are the most powerful, but we are the most
    important Committee.
        We are trying to balance the right of the people to have
    the data that is created by not just the National Institute for
    Health, but, to be honest, by government at government expense.
        We want them to have the data. We want them to have the
    knowledge. What is very clear is in the promotion of the
    publications that we want published, we want to maintain the
    benefit ordinarily accorded to copyrights, and that is really
    the balancing act that I know we are going to hear about today
    and that we are going to try to achieve with this legislation
    is exactly that.
        We want to preserve protection under Section 102. We
    clearly, though, want to make sure that the American people,
    through these publications, do end up with data and knowledge
    being made available to people and that those sources from
    which the data and knowledge came are made available in a
    timely fashion.
        That balancing act is important to the Chairman and
    everyone on the dais, including Mr. Coble, and I believe this
    legislation is, like most legislation, not yet perfect, but
    close.
        With that, Mr. Chairman, I look forward to the hearing and
    thank you again, and yield back.
        Mr. Berman. Well, I think I will introduce the witnesses.
        We are very pleased that all of you took the time to be
    here today and to share your thoughts with us, and particularly
    the director of the NIH, who I first had an opportunity to talk
    to on the issue of the substance of this and what is the
    appropriate Committee to deal with it.
        But as one who will be Chairman of a Committee that is
    nowhere near either the first or second most powerful
    Committee, my relationship with the Chairman of either the
    first or second most powerful Committee made me more
    diplomatic.
        Dr. Elias Zerhouni is Director of the National Institutes
    of Health, the Nation's leading medical research agency. He
    oversees the NIH's 27 institutes and centers, with more than
    18,000 employees and a budget of $29.5 billion.
        Dr. Zerhouni is a world leader in the field of radiology.
    Prior to joining the NIH, Dr. Zerhouni was a professor of
    radiology and biomedical engineering.
        Dr. Zerhouni earned his medical degree from the University
    of Algiers and completed his residency at Johns Hopkins. He is
    the author of 212 publications and holds eight patents.
        Speaking of patents--oh, no, no.
        Mr. Issa. Thanks, Howard.
        Mr. Berman. Ralph Oman, who I have known a long time,
    teaches copyright law at the George Washington University Law
    School, serves as a fellow at the law school's creative and
    innovative economy center.
        From 1994 to 2008, he was counsel in the Washington office
    of Deckert, LLP. Before entering private practice, Mr. Oman was
    the Register of Copyrights of the United States and, before
    that, previously served as chief counsel to the Subcommittee on
    Patents, Copyrights and Trademarks of the U.S. Senate Judiciary
    Committee, when they had a Subcommittee on Patents, Copyrights
    and Trademarks.
        I think Senator Mathias, at one point, Chaired that
    Committee.
        Mr. Oman received his J.D. from Georgetown University Law
    Center.
        Heather Dalterio Joseph serves as the executive director of
    the Scholarly Publishing and Academic Resources Coalition,
    SPARC, a membership organization representing more than 800
    university and college libraries whose mission is to expand the
    dissemination of scholarly research.
        Ms. Joseph is also the convener of the Alliance for
    Taxpayer Access, a coalition of libraries, universities,
    patient advocacy groups, consumer groups and other
    organizations that work to ensure the results of publicly-
    funded research--make sure that they are accessible to the
    public.
        Prior to joining SPARC, Ms. Joseph spent 15 years as a
    scholarly publisher for both not-for-profit and commercial
    organizations. She holds both a BA and an MA from the
    University of Maryland.
        Finally, Dr. Martin Frank is executive director of the
    American Physiological Society, a nonprofit membership
    organization that publishes a number of scientific journals,
    including Cell Physiology and the Journal of Applied
    Physiology.
        Prior to joining the APS, Dr. Frank was the executive
    secretary of the physiology study section at NIH and an
    assistant professor at George Washington University Medical
    School.
        Earlier in his career, Dr. Frank served as a research
    associate at the Michigan Cancer Foundation and in the
    Department of Pharmacology and Toxicology at Michigan State
    University.
        Dr. Frank received his Ph.D. in physiology and biophysics
    from the University of Illinois at Urbana.
        Gentlemen and lady, we await your testimony. Your prepared
    statements will be included in the record and we will be
    grateful for you highlighting and summarizing those statements.
        Dr. Zerhouni, why don't you start?

               TESTIMONY OF ELIAS A. ZERHOUNI, DIRECTOR,
              NATIONAL INSTITUTES OF HEALTH, BETHESDA, MD

        Dr. Zerhouni. Thank you, Mr. Chairman.
        I would like to thank you, Chairman Berman, Chairman
    Conyers, Ranking Member Coble, and Members of the Committee,
    for giving us this opportunity to present NIH's views on the
    public access policy.
        I have submitted testimony for the record. What I would
    like to do is also submit for the record prints of slides that
    I will show you on the screen.
        I think it is important to realize that we wouldn't be here
    unless the world of information technology had not changed. If
    this was a world of paper publications, I don't think NIH would
    have developed a policy such as the one we tried to work on.
        Why is it that we felt it necessary to move forward in this
    context?
        First and foremost, I am going to show you here a table
    that we all have in every institute director's office at the
    NIH. These are the 23 chromosomes of a human being, and we have
    a table where we post every discovery on every chromosome that
    is resulting from the completion of the human genome.
        I am showing you here my table in 2005. There was one
    discovery in macular degeneration, a cause of blindness.
        I show you, in 2006, we made three discoveries, all
    important in the sense of giving us insights into heart disease
    and neurological diseases.
        Look at what happened between 2007 and 2008. The first
    quarter of 2007, I had a report of seven discoveries, more than
    we had before. Second quarter, third quarter, fourth quarter,
    first quarter of 2008, second quarter of 2008.
        There is a true explosion in scientific discovery. And when
    you look at this, you have to also see that we have made
    discoveries that require exploitation. Many genes, as we showed
    you here in diabetes, were not known to us 10 years ago. Now,
    16 are known to us.
        If you look at autism, last month alone, we reported on six
    completely novel genes. We need to exploit this discovery at a
    rapid pace. But to exploit these very complex discoveries, we
    need to have access to all of the publications and all the data
    sources of scientific information.
        You can see here, also, the explosive growth of knowledge.
    These are the databases at the National Library of Medicine,
    the NCBI, the National Center of Biotechnology Information,
    have been putting in place since year 2000. Look at the growth.
        We have over 2 million users a day coming to NIH to look at
    our databases. Two million users is much more than just
    scientists. We don't have that many scientists.
        This is used by the public, by teachers, by students, by
    patients, by their parents. Sixty percent of our patients now
    go to the doctor with information extracted from these
    databases.
        And if you look at this and you put yourself in my
    position, I have to promote science and health, here is the
    picture that I see. We can define the problem. We have
    multiplied by orders of magnitude the amount of scientific
    information.
        It is very fragmented. It is quite disorganized. And we
    know now that to make progress, we will need to interconnect
    all of the discoveries we are making and make sure that the
    scientists and anybody who needs that information is able to
    exploit it in the Internet age, because the real value is in
    the full connectivity, not just the posting of the passive
    documents, it is the connectivity of all available electronic
    sources of scientific information and their efficient
    exploitation with the new powerful engines of software that are
    used in the modern search engine technology, and not just in a
    passive display.
        This is what 21st century science and health require, even
    the current explosion of knowledge, and what NIH needs to keep
    its competitive edge worldwide.
        How have we done this? So if you look at PubMed Central,
    for example, you would think it is one database. In fact, it is
    a small portion of the whole family of databases, and I am just
    showing you a few here.
        The human genome, on the top right, and then protein
    structures, and then molecules that we know are therapeutic
    molecules, all of this needs to be functionally integrated.
        It is enough for a scientist to go to every one of these
    databases and ask information about what they could do research
    on or for a patient to come in and have access to one article
    devoid of its context.
        What I think we see is this. Let me just demonstrate for
    you the world as we see it before public access.
        So let's say you are interested in ovarian cancer and you
    go to Google and, at the top of this, you say, ``I want to know
    about tumor biomarkers for the detection of ovarian cancer.''
        Ninety-nine percent of Google searches will show you an
    NIH, NLM, NCBI database as the answer to those queries.
        When you go to Google, you will find, for example, in this
    case, there was an article that was published, and that would
    link you up to the PubMed Central.
        So you go to PubMed Central, you find the article. It also
    tells you that it was funded by the National Cancer Institute
    or three grants, and then you want to know about it. And we
    always link all of our articles to the original sources.
        So you click on the link and you go there and here you go.
    This is the world before public access, $31.50 if you want to
    read that article.
        But that is not where the value is. The value of public
    access in this age is different.
        Let me show you what the new world will be. If you look at
    today's databases and you looked at the NIH databases, four out
    of five articles are not available for exploitation, for
    looking at the content of the article and understanding if they
    are interrelated to another area of research that you really
    need to connect to.
        But if you look at what we see as the world as to public
    access, let me show you. Let's say you are interested in
    ovarian cancer again and you want to find out if there are
    certain genes that really promote that growth.
        Sure enough, you find a paper. That paper is from the
    proceeding of the National Academy of Sciences, which actually
    is the access to the paper. And then the next thing you do, you
    look at it and then you ask yourself a question, because our
    scientists have developed powerful tools.
        What you see here on the lower right corner--left corner
    here is if you want to know any related article, you just push
    a button and it gets there. If you want to know the gene, if
    you want to know the substance, the protein, and look what
    happens.
        In this case, the paper was there. The scientist looked at
    it. And guess what? They connected to an article they didn't
    know about that had to do with prostate cancer, in fact, where
    the same gene, HOXB13, was also active in prostate cancer.
        That is the connectivity where the whole is much greater
    than the sum of the papers that supported that whole. That is
    what we want to accomplish.
        So when you look, for example, at PubMed search results,
    you can look at the paper, you can look at the chemical
    structure, you can look at the countdown and view the chemical
    protein all at once.
        Now, let me just say that this is very powerful. We
    discovered SARS in 2 weeks.
        And if I may, Mr. Chairman, have 1 extra minute. I am sorry
    to be over time.
        But I want to say that there is, in our view, not real
    evidence of deleterious impact on public access. We have over
    400 journals that participate already since 2000 and all of
    them provide their content within 12 months. No evidence that
    this has been damaging.
        Through Web sites, such as HighWire Press, my friend, Marty
    Frank, actually publishes their own papers in a public database
    at 12 months. There is no evidence that this has been harmful.
        More importantly, I want you to know that we have been
    cautious and open and we have followed a long process of 4
    years of interactions with publishers and Congress, and,
    clearly, the policy is working today.
        We have a 56 percent compliance rate and we have something
    that is remarkable. That is that many publishers today are
    depositing our authors' articles on the authors' behalf,
    Blackwell Publishing, Nature Publishing, some within 6 months.
        Last, but not least, let's remember that we are the least
    stringent of the policies that have been developed and we fully
    believe that it is consistent with company law, because we are
    not taking away the copyrights from the authors to the
    publisher.
        They can reproduce articles. They can derive work. They can
    actually charge for any derivative works used. We only require
    a nonexclusive license after 12 months of embargo and this is
    truly, in my view, a very, very appropriate use of granting
    authority, when we pay $400,000 per grant.
        Thank you, Mr. Chairman.
        [The prepared statement of Dr. Zerhouni follows:]
                    Prepared Statement of Elias A. Zerhouni

                                   ATTACHMENT

        Mr. Berman. Ralph?

       TESTIMONY OF THE HONORABLE RALPH OMAN, PAVEL PROFESSIONAL
      LECTURER IN INTELLECTUAL PROPERTY LAW FELLOW, CREATIVE AND
    INNOVATIVE ECONOMY CENTER, THE GEORGE WASHINGTON UNIVERSITY LAW
                         SCHOOL, WASHINGTON, DC

        Mr. Oman. Mr. Chairman, Mr. Coble, Chairman Conyers,
    Members of the Subcommittee, it is great to be back here after
    a short break of 15 years.
        I appear today as the former Register of Copyrights,
    representing, as I always have, the public interest.
        I don't have a dog in this fight, financial or otherwise. I
    teach copyright law, as you mentioned, at George Washington
    University Law School. I do not represent any of the parties.
    But I am like an old fire dog. When the bell rings, I come out
    running in the defense of the copyright system.
        You have my formal written statement and this afternoon I
    would like to elaborate on one or two basic points.
        My written statement gets into the policy issues, which my
    fellow colleagues at the witness table will get into in greater
    detail.
        My basic concern about the new NIH public access proposal
    is its dilution of the rights of the copyright owners. In my
    opinion, it will destroy the commercial market for scientific,
    technical and medical journals.
        If the publishers go out of business because of this new
    NIH publication policy, we will lose a very valuable
    professional resource for scientific advance.
        With plummeting sales, how could the STM publishers
    possibly stay in business?
        The dramatic evidence of scientific advances that Dr.
    Zerhouni made reference to, they are breathtaking, but, in my
    opinion, they are not in any way threatened by greater respect
    for the rights of the copyright owners.
        The NIH policy, in fact, should change in a way that
    respects the spirit and letter of the copyright law. In that
    way, we could achieve the basic constitutional purpose of
    copyright, and that is to promote the progress of science and
    advance learning and, in that way, reach a broad audience for
    these extremely important manuscripts that are produced with
    the funding of the National Institutes of Health.
        On a very narrow point, Mr. Chairman, I think that, in many
    ways, the controversy that we are dealing with today is based
    on a misreading of Section 218 of the appropriations
    legislation.
        With the expert Subcommittee's guidance here today, I hope
    that the NIH will reconsider the basic underpinnings of its
    proposal and draft new regulations that are true to the
    congressional mandate.
        Please let me explain. When drafting legislation, Mr.
    Chairman, Congress doesn't waste its breath. When it adds a
    provision, it adds a provision for a reason.
        The Appropriations Committee deliberately added the public
    access language in Section 218 of the bill, then it refined and
    clarified that language and added a very important limitation.
        It added a proviso that required the NIH to implement its
    public access policy ``in a manner consistent with copyright
    law.'' The NIH argues that the addition of that language is
    surplusage, that it doesn't have any meaning, that Congress
    just as easily could have left it out, because the NIH policy,
    in the director's opinion, is consistent with copyright law.
        I disagree on that assessment, as I note in my written
    statement.
        What Congress was telling the Director to do was different.
    You, Congress, were telling him to figure out a way to
    accomplish Congress' public access objectives in a way that
    respects copyright.
        He has many ways to do that. Let me give you one example of
    how he might do so.
        He could require submission of the peer reviewed
    manuscripts to the National Library of Medicine for security
    and archiving purposes and for the internal review and use of
    the NIH experts.
        For those copyright owners, and there are some, if not
    many, who agree to free public access, he could allow the
    publication of their manuscripts on the PubMed Central Web site
    after a 12-month period.
        For all other articles, those developed with NIH funding,
    the Director could instruct PubMed Central to provide links,
    with a brief summary to the publisher's Web site, instead of as
    apparently they are doing now, where the public could gain
    immediate access to all of these manuscripts.
        That revised policy would fulfill Congress' desire to have
    all of the government-funded articles publicly available within
    12 months, without running roughshod over the rights of the
    copyright holders.
        I repeat, the appropriations legislation does not say free
    public access within 12 months. It just says public access. I
    think the director may have misunderstood the congressional
    mandate.
        To me, it seems far more likely that Congress will achieve
    the desired objective, which is the broadest possible
    dissemination of peer reviewed article manuscripts, under the
    current system. With the strong copyright protection that we
    now have under the copyright laws, the private STM publishers
    will run the peer-to-peer process. They will select the
    articles.
        They will aggressively market those journals to libraries
    and other research institutions, both foreign and domestic.
        The current system lets the publishers bring their
    professional judgment and expertise into the process and
    ensures high quality scholarship.
        Paid subscriptions keep the current system perking along,
    without intrusive government involvement and without an
    infusion of funds from the government, to support the work that
    is now done by the publishers.
        If the NIH provision is fully implemented, it will almost
    certainly end this self-policing and self-financing system and
    get the Federal Government deeply involved in the STM
    publishing business.
        Mr. Conyers' bill, Chairman Conyers' bill will get the NIH
    back on track and will prevent other Federal agencies from
    wandering down the same counterproductive path. I urge its
    early passage.
        Thank you, Mr. Chairman, for having me back. I would be
    pleased to answer any questions.
        [The prepared statement of Mr. Oman follows:]

                        Prepared Statement of Ralph Oman

        Mr. Berman. Ms. Joseph?

       TESTIMONY OF HEATHER DALTERIO JOSEPH, EXECUTIVE DIRECTOR,
        SCHOLARLY PUBLISHING AND ACADEMIC RESOURCES COALITION,
                             WASHINGTON, DC

        Ms. Joseph. Thank you, Mr. Chairman, and especially
    Chairman Conyers. Thank you for the opportunity to testify
    today on this proposed legislation.
        I am speaking today on behalf of SPARC, the Alliance for
    Taxpayer Access, and the Association of Research Libraries, and
    I am here today because these organizations represent the end
    users who currently benefit from access to the works that would
    be affected by this legislation.
        SPARC and ARL represent libraries, which are the customer
    base of the journal publishing industry. As you heard earlier,
    SPARC also coordinates the Alliance for Taxpayer Access, which
    is a very active coalition of patients' advocacy groups and
    other organizations who are dedicated to ensuring that the
    public receives access to the results of research funded using
    taxpayer dollars.
        I am also here, as you heard, because I spent 15 years as a
    journal publisher. And I am here for a third reason. I am here
    as a mother and as a member of the public, who has an abiding
    interest in the results of the research that my tax dollars
    help to support.
        I would like to express my serious reservations about this
    proposed legislation and particularly the negative impact that
    it would have on the availability of vital health care
    information by overturning the crucially important NIH policy.
        U.S. taxpayers underwrite tens of billions of dollars
    research each year and the sharing of this research is an
    essential component of our collective investment in science.
    Yet, despite the fact that we have paid for this research,
    members of the public frequently cannot access these findings,
    because they simply can't afford to subscribe to all of the
    journals in which they are published.
        This is why the organizations that I represent today have
    supported efforts such as the NIH. Opponents of the policy have
    expressed a variety of concerns, but chief among the concerns
    is the fear that the policy will create a resource that will
    compete with journals.
        The concern is that their primary customer, the library
    community, will view the availability of an author's manuscript
    in PubMed Central as an adequate substitute for subscribing to
    a journal and, as a result, cancel subscriptions.
        This fear is unfounded.
        First, the current policy is a compromise that contains
    safeguards against this happening. Authors are required to
    deposit only the final accepted manuscript, the raw word
    processing file, not the final copy edited and copyrighted
    version that will ultimately appear in the journal.
        Second, the policy allows an embargo period of up to 1 year
    before a manuscript becomes available. In the fast-moving world
    of biomedical research, information after 1 year is old.
        Finally, few, if any journals publish only research
    articles that have resulted from NIH funding. The vast majority
    of journals publish articles resulting from other funding
    sources, along with review articles, commentary and other
    value-added material.
        As a publisher, I have worked for organizations who have
    voluntarily deposited their content into PubMed Central. One,
    the American Society for Cell Biology, has made the research
    articles from its journal available on PubMed Central, with
    only a 2-month embargo period, since 2001.
        The society puts, also, all of that journal's content into
    the database, not just the fraction supported by the NIH
    funding. Yet, the revenue generated by that journal has
    continued to increase since 2001 and the number of articles
    downloaded from the society's Web site has increased, as well.
        And the ASCB is not alone as a publisher experiencing these
    results. Several hundred other journals have similar policies
    listed on the PubMed Central Web site. None would do so if
    their revenue was threatened in any way.
        Finally, as a mother and as a member of the general public,
    the NIH policy addresses a very real need. The information
    contained in the PubMed Central database is crucial health-
    related information that can make life and death differences in
    the lives of the public.
        Currently, the database contains more than 27,000 articles
    on malaria, 50,000 on AIDS, and more than 77,000 on diabetes
    research. It is a vital resource for individuals looking for
    health care information.
        And I know this personally, because when my 5-year-old son
    was diagnosed 9 weeks ago with autoimmune insulin-dependent
    diabetes, I did what is now routine. I got out, I Googled every
    piece of current information that I could find.
        I did this from home, and I did it at 3 o'clock in the
    morning, the night we got home from the hospital, desperate for
    information that could reassure me that there was something I
    could do besides wake my child up twice a night to check his
    blood sugar for signs of hypoglycemia.
        I found a 2008 study of continuous glucose monitors that
    rated parent and patient satisfaction in the prevention of
    these nighttime lows. Notably, the study that was available was
    the author's final manuscript that had been posted 1 month
    before, available solely because the NIH policy was in place.
        The policy strikes a careful balance between increasing
    access to the literature and respecting the concerns of the
    publishers by operating within the current copyright structure.
    The NIH policy in no way conflicts with U.S. copyright law.
        The agency receives a nonexclusive license from the
    researchers they fund, who retain their copyright and are free
    to enter into publication agreements with journals, subject to
    the standard Federal purpose license.
        The Fair Copyright in Research Works Act would overturn
    this important and much needed policy by prohibiting agencies
    from making the results of their research available in the way
    they choose to the public.
        This bill would significantly inhibit our ability to
    advance scientific discovery. The legislation is not in the
    best interest of the taxpayers who fund the research, the
    scientific community, or the public who relies upon it.
        Thank you once again for the opportunity to testify.
        [The prepared statement of Ms. Joseph follows:]

                 Prepared Statement of Heather Dalterio Joseph

        Mr. Berman. Thank you.
        Mr. Frank?

        TESTIMONY OF MARTIN FRANK, EXECUTIVE DIRECTOR, AMERICAN
                  PHYSIOLOGICAL SOCIETY, BETHESDA, MD

        Mr. Frank. Thank you, Mr. Chairman and Members of the
    Subcommittee. Thank you for the opportunity to testify today.
        As you noted, I am the executive director of the American
    Physiological Society. I am also the coordinator of the D.C.
    Principles Coalition, and I have also been a scientist
    researcher and an extramural employee at the National
    Institutes of Health.
        I have submitted testimony in support of H.R. 6846 and want
    to highlight some of the issues raised in these comments.
        H.R. 6845 will help ensure that the Federal Government does
    not diminish copyright protections for journal articles in
    which private sector publishers have made a significant value-
    added contribution.
        By protecting copyright, the act will continue to provide
    incentives for investment in the peer review process, which
    helps ensure the quality and integrity of scientific research.
        The APS is a not-for-profit society founded in 1887 and our
    first journal, American Journal of Physiology, dates to 1898.
        The D.C. Principles Coalition was founded in 2004 by not-
    for-profit publishers, who believe in free access to science
    and who make the full text of their journals freely available
    within the constraints of their business and publishing
    requirements.
        The coalition is a diverse group comprised of 73
    publishers. We publish nearly 400 journals, ranging from top
    tier medical and research to small niche publication.
        Because we are so different, the coalition has always
    supported its members' desire to make their own decisions on
    when to make their content freely available. Some opt for free
    access after 2 years, others after 2 months, because one policy
    does not fit the needs of all publishers.
        Many of the D.C. Principles Coalition members work with
    HighWire Press, as noted by Dr. Zerhouni, the largest
    repository of high impact peer reviewed scientific content,
    including two million free articles.
        Coalition members also provide access for scientists in the
    developing world by participating in WHO initiatives, such as
    HINARI and Agora.
        Patients can get access to our journals via patient request
    links and through Patients Informed, a publisher initiative
    designed to provide patient access to research articles and
    commentaries relevant to their medical conditions.
        As scholarly publishers, it is our mission to maintain and
    enhance the independence, rigor and trust, and the visibility
    that have established our journals as reliable filters of
    information emanating from basic and clinical research.
        We do so through the peer review process that evaluates the
    strengths and weakness of submitted manuscripts, selecting
    those that meet the journal's high standards for publication.
        Some say that funding agencies have rights to the articles
    written by their grantees. While the agencies pay for the
    research, the publisher bears the cost of peer review and
    publishing.
        Articles should not be taken from those of us who have
    invested heavily in their creation. By imposing a mandatory
    policy without oversight by responsible congressional
    Committees, NIH has diminished a basic principle under
    copyright, namely, the right to control the distribution of the
    works we publish.
        The NIH could have provided access to its funded research
    without diminishing copyright protection. It could have
    followed Congress' direction under the America Competes Act,
    which authorized NSF to provide access to research reports and
    summaries, as well as citations to copyrighted articles, rather
    than the articles themselves.
        Alternatively, it could have worked with publishers to
    provide access through existing links associated with journal
    article abstracts posted on PubMed.
        Under the mandatory policy, NIH has become a publisher. It
    has created a platform that competes with not-for-profit and
    commercial publishers alike. It takes the article from the
    publisher after it has done the heavy lifting of validating the
    science through the costly and time-consuming peer review
    process.
        NIH's next step is to enhance this content further by
    linking it to databases and resources not readily available to
    small publishers.
        As PubMed Central becomes an increasingly valuable and
    singular resource, as envisioned by Ms. Joseph, it becomes more
    likely that journal subscribers will opt to access articles
    from NIH's Web site rather than the journals. This will lead to
    subscription cancellation, as suggested by studies discussed in
    my written testimony.
        We are gravely concerned that the funding base of some
    journals may be eroded to the point where they can no longer
    adequately serve their scholarly communities. Some may be
    forced to increase their author fees, at a time when funding
    for research is shrinking.
        As a result, researchers will be disadvantaged, in one
    case, by having less freedom to choose where to publish or what
    community to reach, and, in the other, failing to have adequate
    resources to fund research designed to develop treatments and
    cures for disease, as author fees eat away at the research
    dollars provided by Congress.
        Thank you for hearing my testimony. I would be pleased to
    answer your questions and respond to issues raised by the other
    panelists.
        [The prepared statement of Mr. Frank follows:]
                       Prepared Statement of Martin Frank

        Mr. Berman. Thank you all very much.
        I will recognize myself for 5 minutes to begin the
    questioning.
        Dr. Zerhouni, let me start with you. You spoke about the
    Appropriations Committee's concern about the lack of access to
    NIH supported research reports and data.
        Let's assume that both perspectives here are--both
    narratives are valid. There needs to be greater public access,
    but it is important to remember the incentives for publishers
    to provide peer review and things they do.
        Is the National Science Foundation policy, that apparently
    was mandated by the America Compete Act that Dr. Frank spoke
    about, is that a realistic and sensible middle ground, the
    information, the summary of the research is provided to the
    public through the database and other NIH means, but the
    journal article remains subject to distribution by the
    publishers, the copyright owner?
        Dr. Zerhouni. We do not believe so, and I will tell you
    why. I think that peer reviewed articles are very important.
    The peer review process is critical.
        You cannot just have a self-reported scientific report of
    activities under grants to replace the full effort that an
    author has to make to understand all of the other literature,
    to write their publication, submit their data.
        And therefore, it is very important for us to understand
    that what is key here is to have a database of the absolute
    final author's manuscript that is peer reviewed by his peers.
        Is that going to damage peer review? Currently, Mr.
    Chairman, NIH pays for peer review costs. We pay two ways. One,
    we allow our grantees to pay $3,000 to $4,000 to the publishers
    for page charges, reproduction charges.
        We have never stopped that. We don't intend to stop----
        Mr. Berman. Say that again. The research grant includes----
        Dr. Zerhouni. Publication costs. We allow our grantees to
    pay publishers who request that costs of page charges or
    reproduction charges or figure charges. We do not prevent our
    grantees from paying for those costs.
        Mr. Berman. So when I made the comment in my opening
    statement that several thousand dollars are only paid by the
    journals to produce this peer review process, you are telling
    me that if I looked further, I would find out that the
    researchers are passing on the money, the grant money you
    provided them, authorized by the terms of that grant, to the
    journal.
        Dr. Zerhouni. We consider publication costs part and parcel
    of the scientific process. We have always allowed those costs.
        They are currently anywhere from----
        Mr. Berman. Is that happening?
        Dr. Zerhouni. It is happening to the tune of probably $100
    million a year, anywhere between $80 million to $100 million.
        Every grant that we give is, on average, $400,000. We allow
    upwards of $3,000 per year for publication----
        Mr. Berman. Dr. Frank, is that your understanding of the
    way it works?
        Mr. Frank. NIH does authorize, in their NIH grant policy
    statement, that research dollars can be used to pay for
    publication costs.
        The problem is publication costs of $3,000 to $4,000 for an
    individual investigator whose grant has already dried up and
    gone away has to come out of the individual's pocket or the
    university, because many of the papers that are published are
    published post-research funding.
        Secondly, most authors, investigators, have the opportunity
    to----
        Mr. Berman. In other words, the researcher may have been
    allowed to do it, but----
        Mr. Frank. But if he has got no money, he has got no money.
        Mr. Berman [continuing]. In reality, he budgets like I do
    and that money has been spent.
        Mr. Frank. That money has been spent.
        Secondly, there are only a small portion of journal
    publishers who charge $3,000 or $4,000 for open access.
        For example, Dr. Zerhouni indicated that there are
    approximately 400 journals that deposit both NIH and non-NIH
    content into PubMed Central. Of those 400 journals, about two-
    thirds of them are traditionally referred to as open access
    publishers, BioMed Central, Public Library of Science, and
    Dari, all of them who charge authors for publication.
        And the question really has to boil down to whether or not
    we want to charge the author for publication and take dollars
    out of their research grants, assuming the grant has not
    expired, or do we want to have the user, the reader, pay for
    publication, which is the subscription model that the vast
    majority of publishers use.
        Commercial journals, for example, do not charge generally
    for page charges for publication. They rely on the reader to
    extract--to recover the costs associated with that publication
    process.
        The other side of it is Ms. Joseph said she represents the
    library community, and the library community is, of course, and
    has expressed itself with considerable concern about the cost
    of publication. And I have no argument with the cost of
    publication.
        They say that the rate of increase has far outpaced
    inflation. But the expansion of knowledge has also outpaced
    inflation and if one looks at the total number of pages
    published and compare that to subscription costs, one often
    finds that there is a parallel, more science, more subscription
    costs.
        Mr. Berman. Okay. My time has expired.
        So I am going to recognize the Ranking Member for questions
    for 5 minutes.
        Mr. Coble?
        Mr. Coble. Thank you, Mr. Chairman.
        Good to have you all with us, I will say to the witnesses.
        Dr. Zerhouni and Ms. Joseph, what about the basic complaint
    that Mr. Oman, Dr. Frank and members of the publishing
    community make? That is, if NIH disseminates peer reviewed
    articles free of charge 12 months after publication, do private
    publishers have any incentive to initiate the peer review
    process and, therefore, provide publication services?
        And furthermore, if publishers are forced out of this
    business, will the NIH fill the vacuum?
        Dr. Zerhouni. I would just like to point out the reality on
    the ground, Mr. Coble. Currently, as you just heard, many
    journals currently make available their authors' copy almost
    immediately.
        Many journals make the entire collection that they have
    available to the public within 12 months. I don't know how that
    is okay, on the one hand, but if NIH does it, it is not okay.
        I don't think you can say, on the one hand, it doesn't
    damage the economic model and, on the other hand, it is the end
    of the world. That is our view, that the publication or making
    available after 12 months over and over has shown that the
    economic recovery has already occurred.
        Mr. Coble. Ms. Joseph, do you want to be heard?
        Ms. Joseph. I completely agree and I think that the
    evidence that we have from the journal publishing community who
    have made their manuscripts available at 12 months or shorter
    shows that it is a perfectly viable economic model.
        Again, this is biomedical information. This is time-
    sensitive stuff. A year is old. We, as the library community,
    cannot cancel library subscriptions in favor of waiting for
    some subset of this material to be available in a database a
    year later.
        The universities and colleges that we serve demand that we
    provide access to this. The situation that we are finding
    ourselves in now, though, is paying more and more money year in
    and year out to be able to provide our universities with access
    to less and less information.
        Mr. Coble. Mr. Oman, is there an inherent problem with the
    Federal Government orchestrating the peer review and manuscript
    selection process, if it comes to that, and would this
    responsibility better be left to the private sector?
        Mr. Oman. It has been a longstanding U.S. government policy
    to encourage the private sector to undertake these
    responsibilities out of a consideration for the First
    Amendment, out of a healthy distrust for the hairy snout of
    government being in these delicate and sensitive publishing
    decisions.
        And I don't think that the National Institutes of Health
    are prepared to or are capable of providing that type of
    detached evaluation, those judgments that relate to publishing
    and the incorporation of peer reviewed articles without a
    considerable increase in their manpower and at great expense to
    the taxpayer.
        Mr. Coble. Thank you, sir.
        Dr. Frank, it appears that APS has done a stellar job of
    providing its articles online within 12 months of publication.
        Why do you think the voluntary compliance with the NIH
    policy was so low in comparison, inspiring the present
    mandatory requirement?
        Mr. Frank. I think the voluntary plan that NIH instituted
    was belabored with a somewhat cumbersome upload process and
    mixed signals to the investigator community.
        Invariably, mandatory is going to be heard much clearer by
    an investigator than voluntary. I think, in general, the
    voluntary community, at least my community, actually didn't
    think the program was necessary, perhaps because, at least for
    my journals, we make them available 12 months after
    publication, whether it is NIH or non-NIH funded.
        The critical factor there, however, is that it has been my
    financial and business decision to make it available after 12
    months and should it not succeed, I can always roll it back to
    18 months or 24 months.
        With the NIH mandate and with the fact that, at least for
    the American Physiological Society, which has about 50 percent
    of its articles funded by the National Institutes of Health,
    they have essentially told me that I cannot roll back my access
    period, my embargo period, because they have a mandate and
    those articles must be deposited.
        Mr. Coble. I see my red light.
        Mr. Chairman, I yield back.
        Mr. Berman. The Chairman of the Committee is recognized.
        Mr. Conyers. Thank you very much.
        Now, first of all, I agree with you, Attorney Oman, but can
    we use kinder language about NIH when you refer to the hairy
    snout of government? Is there some other way, some terminology
    that would make this kinder and gentler?
        Mr. Oman. Lipstick on a pig? I will consider revising the
    written testimony.
        Mr. Conyers. Thank you very much.
        Mr. Watt. Does a donkey have a snout or is it just
    elephants?
        Mr. Conyers. I have some questions, you four are
    particularly articulate and knowledgeable. This is a stunning
    hearing that we only wish could have taken place before our
    other Committee, which I now consider to be third ranking only
    to the Foreign Affairs Committee, which I think now precedes it
    decided on the issue.
        But could we have a discussion amongst you in connection
    with what you have heard and been impressed with about your
    other three colleagues?
        And I would like to start with Ms. Joseph to let us know
    what your impressions are or any corrections you might want to
    suggest.
        Ms. Joseph. I think one item leaps out at me and that is
    the notion of peer review and who pays for peer review, how
    peer review is conducted and actually financed.
        I think the impression is given sometimes that--or not the
    impression is given--the statement is made that publishers make
    a substantial investment in peer review.
        Peer reviewers are volunteers. Peer reviewers are unpaid.
    Peer reviewers are employees of universities, public
    universities, colleges, sometimes corporations. Their salaries
    are paid outside of the publishing arena.
        Publishers do make an investment in peer review, but it is
    in the administrative coordination of sending an e-mail to
    notify a peer reviewer that the peer review process needs to
    take place.
        Peer review is a very important process, but I think we
    need to be clear. Who does the work? It is the scientist. It is
    part of the culture. It is a volunteer endeavor that scientists
    routinely perform without compensation.
        Mr. Conyers. Thank you.
        Dr. Martin Frank, what would you add to this conversation?
        Mr. Frank. I agree completely. Peer reviewers do it because
    it is part of the culture of science, just like peer reviewers
    work for NIH to review research grants.
        The APS budget for publication, it costs us roughly $13
    million to publish 14 scientific journals, 4,000 articles per
    year. That is the cost of my publications program.
        Of that, about 20 percent of that cost is associated with
    the sending of e-mails that Ms. Joseph has alluded to. We had
    to develop and pay for an online submission and review system.
    We have to support the editorial offices and associate editors
    that make the decisions on who those peer reviewers will be and
    make the decisions on whether to accept those papers, and I
    have staff within the APS offices who manage the peer review
    process.
        It is free when it comes to getting opinions. As we know,
    opinions come cheaply.
        Mr. Conyers. Boy, do we know that around here.
        Mr. Frank. The opinions we solicit are those of
    knowledgeable scientists who can assess the validity of the
    research that has been submitted for consideration of our
    journals.
        Mr. Conyers. Dr. Zerhouni, you are not on the larger scale
    of this discussion and I would--do you have some comments about
    what your three fellow panelists have said here today?
        Dr. Zerhouni. Yes. I think it is a very important issue
    that you are dealing with, Mr. Chairman. I wish, actually, the
    Committee had been more involved over the 4 years that this
    discussion has taken place.
        This is a fundamental issue and when you really think about
    what is being said, I think we were misrepresented as the hairy
    snout or whatever. We don't want to do peer review, because
    peer review is actually a volunteer activity.
        We fund many of the researchers who do peer review through
    NIH grants.
        From my standpoint, I use $300,000 of taxpayers' dollars
    for every paper that NIH funds, 80,000 papers a year, $24
    billion of investment.
        I have to make sure that, in the technology world of today,
    we are not fragmenting the information to make the least use of
    that. I have to maximize that for the benefit of science and
    the benefit of health.
        It seems to me that we are trying to be very consistent
    with copyright law. Actually, the fact that we are talking
    about new legislation means that we are consistent in some
    ways, since, if we were not, it wouldn't need new legislation.
        But frankly, I think what you are dealing with here is not
    an issue of economic impact. We don't see the economic impact.
    It is not an issue of peer review.
        It is an issue of control of the property. And I think I
    understand my colleagues' concern about control of the property
    that is generated through $300,000 per paper contribution of
    the taxpayer.
        That is the crux of the issue. My friend says control,
    control, control. Who controls? I think we are trying to get a
    sliver to maximize the return on investment of our investment,
    because of the new technologies.
        Basically, you wouldn't want to make Google illegal so that
    you can preserve newspapers. That is not what the world is
    about today. If it wasn't the case, we wouldn't be pushing
    our----
        Mr. Conyers. And finally, Chairman Berman has allowed me to
    ask Mr. Oman for his final comment before I yield back my time.
        Mr. Oman. Thank you. Thank you, Mr. Chairman.
        I have great confidence in the private sector and the
    ability of the private STM publishers to respond to the
    challenges of the digital age.
        If they keep in the picture, and they can only do that if
    they maintain copyright control over their works, they will
    develop innovative ways of reaching the public at large.
        They will find a way of helping Ms. Joseph find an article
    free of charge at three in the morning.
        The technology is nuanced. They can develop special prices
    for big corporations, for large universities, for foreign
    governments that want access to information. They can have
    lower charges or no charge at all for those that can't pay the
    freight.
        But we need this control. We need this, as was mentioned
    earlier, we need the benefits accorded by copyright to allow
    the publishers to continue to play their extremely valuable
    role in the digital era.
        Mr. Berman. Just before I recognize Mr. Watt.
        Dr. Zerhouni, be a little careful here. I assume your
    reference to Google was not about its owned You Tube and the
    posting of copyrighted works on YouTube, because you may be
    misjudging the Committee's feelings about some of those issues.
        Dr. Zerhouni. I am sorry if I----
        Mr. Berman. Some of the Committee Members' feelings on
    that.
        Dr. Zerhouni. My meaning is about new technology that is
    revolutionizing the world and the preservation----
        Mr. Berman. Well, there is a lot of new technology that is
    revolutionizing--well.
        Dr. Zerhouni. Fine.
        Mr. Berman. It is this slippery slope you are down here.
        Mr. Watt, you are recognized for 5 minutes.
        Mr. Watt. Thank you, Mr. Chairman.
        An extraordinarily fascinating hearing once again, with
    well balanced and well articulated positions on both sides of
    this issue.
        I take it that what we are talking about here, at least at
    this hearing, is biomedical research, and so I have three
    questions that I will ask and then I will get out of the way
    and welcome answers from all of the witnesses.
        First of all, how are we doing this in non-biomedical
    settings, where the government has provided resources for
    research in defense, technology, this area, that area, the
    Internet, all of this?
        And second, is there a rationale, if we are handling it
    differently in those areas, for setting a different standard
    for biomedical?
        And third, is there something magic about 12 months? It
    sounded to me like at least some of this is about whether it
    gets out there in 12 months or 18 months or 24 months or 36
    months.
        Is there some way to compromise this along those lines?
    Those three questions, please.
        Dr. Zerhouni?
        Dr. Zerhouni. Well, obviously, as you know, when the
    government supports an activity, there is no doubt that there
    is a government use possibility there. It has always been
    there.
        And the issue between biomedical and non-biomedical really
    has to do with the public health impact and the timeliness of
    the information.
        Why 12 months? Most people will think 6 months is the right
    amount of time. When somebody has a child, you don't want to
    wait for 6 months to know about the new treatment.
        So that is the sensitivity. We felt, with the input of the
    publishers, that because they were already practicing the 12
    months in practice, making those papers available, that would
    parallel our policy to that of the publishers.
        So 12 months is not a magic number. It is really a
    compromise number between what people believe the pace of
    science is versus what publishers do in practice.
        Mr. Watt. Mr. Oman?
        Mr. Oman. I think the basic premise is flawed. You asked
    about government support of other activities. I suspect there
    would be a cry of outrage if the projects that are funded by
    the National Institutes or the National Endowment for the Arts
    or the National Endowment for the Humanities somehow became
    vaulted into the public domain after 6 months or a year.
        That is not the way government grants normally operate.
    They don't destroy the copyright of the creator prematurely.
    They allow the full term of copyright to run.
        And in the circumstance of scientific, medical and
    technical journals, they are available immediately to the
    public upon publication through the Web sites of the
    publishers.
        I don't know why there is some sort of assumption that they
    are hidden from view until they are put online for free access
    by the National Institutes of Health. That is not the case.
    They are available and they are used.
        Mr. Watt. Ms. Joseph?
        Ms. Joseph. I think there is a difference, a slight
    difference between biomedical science and other sciences. I
    would say that I believe, though, they shouldn't be treated
    differently.
        Humanities, yes, that is a different ballgame. Basic
    science, bench science, research science, which is what this
    bill that we are discussing today is actually aimed towards, I
    don't think there is a difference and I do think that if there
    is a standard being set by the NIH, then other agencies should
    consider to hit that bar. It is a good bar that has been set.
        In terms of the timeframe, the 12-month number, again,
    wasn't a magic number that just appeared in the NIH policy. It
    will come as no surprise to anyone after listening today that
    advocates for public access advocated for no embargo period. We
    paid for this stuff. We should get it on day one. Why wait 1
    day?
        Six months was a number that we advocated for, but over a
    3-year period, 12 months was the agreed upon number, the
    compromise position that everyone felt the policy could go
    forward on and cause no harm in the publishing community.
        Mr. Watt. Dr. Frank?
        Mr. Frank. I was involved with those negotiations and,
    indeed, as Ms. Joseph said, it was 6 months. We were able to
    convince Dr. Zerhouni that 12 months was a much more reasonable
    compromise. That is a subscription year.
        But I think when we talked about, as Ms. Joseph said,
    talked about making the American Society for Cell Biology,
    making its content available after 2 months, if you look at a
    lot of the journals that have been depositing into PubMed
    Central and are making their content available for free, many
    of those are in areas which I, as a scientist, call molecular,
    biological, genomic research.
        If you look at the journals in which those articles are
    traditionally published, there are two measures of scientific
    excellence that are associated with them.
        The first is called an impact factor. The impact factor
    talks about the number of citations, which means how often is
    it used by other scientists.
        The other is really a measure of what I will call shelf
    life, the half life, how long is the article in those journals
    generally cited by colleagues in the field.
        For the journals of the American Physiological Society, at
    least, and for many other disciplines that are more
    traditionally oriented, the half life extends out to 7 to 10
    years, where the molecular and biological half lives might be 1
    or 2 years, maybe 3.
        So having a rapid turnover in those fields is much more
    reasonable than in an ecological study, which has long-lasting
    staying power. And so I think that is one of the issues.
        If I may comment, also, with permission, Mr. Watt, on Mr.
    Oman's suggestion. He had suggested that NIH create an internal
    archive and then link out to the journals. Indeed, that is a
    proposal we brought to Dr. Zerhouni a number of years ago.
        And indeed, commercial and not-for-profit publishers met
    with Dr. Zerhouni and his staff and suggested a creation of an
    internal archive. After all, one of the institutes, the
    National Library of Medicine, preserves the----
        Mr. Watt. Why would you go to the journal as opposed to the
    author?
        Mr. Frank. Say again.
        Mr. Watt. Why would you go to the journal as opposed to the
    author?
        Mr. Frank. Well, right now, the journals control 100
    percent of the content within the covers of the journal. Right
    now----
        Mr. Watt. You still didn't answer my question. Why would
    you go to the journal as opposed to the author? The author owns
    it. The copyright belongs to the author.
        Mr. Frank. The author usually transfers copyright to the
    publisher so that the article is published.
        Mr. Watt. How does that differentiate you from Dr.
    Zerhouni?
        Mr. Frank. Only in the sense that the content that goes
    into NIH is a mandated content deposit and we can't do anything
    about it if it impacts our subscription base.
        Mr. Watt. You pay the author for transferring that right?
        Mr. Frank. No. In biomedical research, you do not pay the
    author for their publication.
        Dr. Zerhouni. We do pay for the author to the publisher for
    supporting the publication costs.
        Mr. Watt. I thank the gentlemen. I think I have got a
    flavor here.
        Thank you so much.
        Mr. Berman. That is sort of it is your choice, but if you
    want it published, you transfer ownership.
        Mr. Watt. Is that different from if you want the Federal
    Government's money, you transfer authority?
        Mr. Berman. That is a good question. Apparently, not that
    different.
        Ms. Lofgren?
        Ms. Lofgren. Thank you, Mr. Chairman.
        Mr. Watt has actually ended with the question I was going
    to start with. I think this is a very helpful hearing and it is
    very useful.
        But it seems to me, as Dr. Zerhouni has pointed out, that
    what the NIH is doing doesn't have any conflict with copyright
    law. I mean, parties can contract around copyright law and do
    frequently, and that is what the NIH is doing and, in fact,
    that is what the publishers are doing.
        And one of the things that I am interested in is the people
    who really have not been discussed here today are the actual
    scientists and the authors, who are the originators of this
    content, but who don't get any rights because they are
    basically required to give up their rights in order to have
    this published, and I think that is very problematic, honestly.
        One way around that actually is what has happened here and
    I really think, Dr. Zerhouni, your PowerPoint was really
    terrific to show how the technology and the growth of
    technology has allowed for interconnectivity and for
    connections to be made in a way that never could be made in the
    past.
        So I really think this isn't, as I have listened to the
    testimony, about copyright right at all, it is about science
    policy. And I think one of the things that I would like at
    least to be connected with is as you move forward, I understand
    you are talking a look at further issues, even though this is
    not about a copyright issue, it at least butts up against it.
        And I think the IP Subcommittee would like to be kept
    posted on it. I mean, the Congress has--I am actually on leave
    from the Science Committee, but I think, in addition to the
    Science Committee, we would like to know what is going on and I
    think that would help us be up to date as this proceeds and it
    would help us all be on the same page as we move forward.
        Since I don't get to see you very often, because I am on
    leave from the Science Committee, may I ask a non-germane
    question, which is in your PowerPoint, you talk about the six
    new genes discovered related to autism, which is enormously
    important to the Nation.
        Do you have any concept of how fast progress is going to be
    made in the autism area and its genetic base as a product of
    the way you are now developing the publication of the
    information?
        Dr. Zerhouni. I think we need, on all fronts, a research
    plan for autism. It is not only just one source.
        Ms. Lofgren. Right.
        Dr. Zerhouni. But this is the first time that we have
    absolute evidence that there are six genes, many of which have
    to do with neural development, which are involved and this
    comes from studies at the international level with scientists
    overseas, scientists here.
        I believe personally that the number one step right now is
    to establish a comprehensive plan for autism research that goes
    from environmental issues to developmental issues to other
    issues of definition of what autism really is.
        We are making progress, not fast enough to my taste, but I
    think this discovery and the many others we have made over the
    past 2 years are truly revolutionary.
        Ms. Lofgren. Now, let me ask whoever knows the answer to
    this question. NIH is making the grants conditioned on sharing
    this information for the advance of science.
        Do private sector funders do the same thing?
        Dr. Zerhouni. That is right. The Howard Hughes Medical
    Institution, as the rule, provides for 6 months. The Wellcome
    Trust, as a rule, provides also for 6 months.
        Other national institutions, the U.K. Research Council, the
    European Research Council, the Canadian Research Council, the
    Australian Research Council, have put out rules that require a
    6-month delay.
        We, again, mindful of the practice here and realizing that
    many publishers already do free display at 12 months, and so we
    decided that if they do it and it doesn't damage their economic
    model or peer review, 12 months should be a good compromise.
        So it is definitely practiced in the private sector, as
    well in the government sector, internationally.
        Ms. Lofgren. Ms. Joseph?
        Ms. Joseph. I would just like to add something to that. The
    Autism Speaks Foundation, which provides a lot of funding for
    autism research, actually approached SPARC for assistance in
    creating their own public access policy, modeled on the NIH
    policy.
        So, yes, this is definitely catching fire in the private
    sector.
        You also asked the question what do the scientists think.
    We were able to provide a third letter from 33 Nobel laureate
    scientists. This is the third time they have written to
    Congress on the NIH policy and the importance of the NIH
    policy.
        It should be available to you in the hearing packet.
        The Nobel prize-winning scientists feel that this is a
    crucial step forward in science policy and in enabling us to
    really leverage our collective investment.
        Ms. Lofgren. I don't think I have that letter. I wonder if
    maybe you could provide us a copy.
        Ms. Joseph. I would like to provide it for the record.
        Ms. Lofgren. I would be interested in reading it.
        My time has expired, Mr. Chairman. Thank you.
        Mr. Berman. Mr. Goodlatte, the gentleman from Virginia, is
    recognized.
        Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your
    holding this hearing. I do have a few questions.
        Dr. Zerhouni, couldn't the NIH have avoided any controversy
    about taking away the value added by the publishers by simply
    requiring the manuscripts to be submitted to the NIH at the
    time they are submitted to the publishers initially?
        While the articles would not have the benefit of peer
    review at the time they are submitted to NIH, couldn't NIH have
    later denoted that in its database in which the articles were
    subsequently accepted for publication?
        And do you believe that the public would then have access
    to the scientific information produced as a result of NIH
    funding, while copyrightable value added by the publishers
    would still be protected?
        Dr. Zerhouni. Well, again, I think that we do not want
    publishers not do peer review. We actually support the role of
    publishers. We want them to succeed in that role.
        For us to take non-peer reviewed articles would be against
    every cautious, prudent management of science. You cannot take
    someone's word for it. You have to have independent peer
    review.
        We do this for grants internal to NIH. We encourage our
    grantees to serve on peer review panels or editors or our own.
    We fund them to be able to sustain the cost of publication.
        It would be very unwise to distribute to a government
    agency non-peer reviewed material.
        More importantly, what is key here is to enable us to
    interconnect the ultimate product, which is this publication,
    peer reviewed by peers, to the whole family of databases that
    make the whole much greater than the sum of the parts.
        That is what the essence of this policy is all about,
    trying to be more than accommodating to not damage peer review
    or the economic model.
        But the issue here is control. You have heard it. It is who
    controls the property. Is the government at all--does the
    government have any right whatsoever to have a condition of
    grant award, which is voluntary? And I am told that this is not
    voluntary because you are giving so much money, the scientist
    has no choice.
        So it is like saying the more the government gives, the
    less the government has a right to exploit this for the benefit
    of its mission. It is like saying, ``Well, the more we give to
    private companies''--with due respect to my colleague, the
    private sector doesn't always get it right.
        The Library of Congress, the Library of Medicine existed
    with public funds because the private sector did not get that
    done. And last week, we saw how the private sector had to have
    government intervention with Fannie Mae and Freddie Mac.
        So I think the key issue here is is there a fundamental
    right that for value provided, that we need to get value back
    for the benefit of what we are being paid for, and that is
    advance science and health.
        Mr. Goodlatte. Let me ask, Mr. Oman, what is the exact
    copyright that the NIH is allegedly taking from the publishers
    by its policy?
        Isn't it really just an expectation of copyrights and any
    rights that accrue to the publisher from an article that exists
    at the time an article is submitted for publication or subject
    to any previous liens on the work?
        In other words, by the time the publisher is deciding
    whether to accept the researcher's manuscript, isn't it the
    case that any rights the publisher would have in the manuscript
    from that point forward would be subject to the private
    contract the original author made with the government to give
    up certain rights in exchange for government funding?
        Mr. Oman. In a technical reading of the copyright law, that
    would be true, Mr. Goodlatte.
        I would like to comment on two things. Number one, why the
    public wouldn't benefit from the immediate publication of the
    un-reviewed paper by the author. I think that would be a very
    positive step in terms of alerting the research community that
    these thoughts are abroad and that they should be aware of them
    as quickly as possible.
        Sometimes the peer review process takes 3, 4, 5 months and,
    if we can credit the comments we have heard today, that is
    sometimes a very crucial period.
        Actually, in the academic community, there is a suggestion
    that there be post-publication peer review as a way of moving
    forward. So it can't be that off the wall to suggest, as you
    have suggested, that perhaps the NIH wants to upload the raw
    data, the raw materials onto their Web site and then let the
    peer review process run its course and have the publishers
    enter the picture and do the evaluations that are so important
    to the ultimate quality of the journal article.
        Mr. Goodlatte. Dr. Frank, would you like to comment on
    that?
        Mr. Frank. I personally think it would be disastrous if the
    non-peer reviewed articles were posted.
        Indeed, Dr. Zerhouni's predecessor, Harold Varmus, when he
    first launched the idea of what has now become PubMed Central,
    it was called eBioMed and there was another component called
    eBioMed Lite, which was going to be the non-peer reviewed
    articles, mirroring what they do in the physics community.
        Most of us, at a meeting where he discussed this, stood up
    extremely concerned about having a non-peer reviewed article
    sitting out there with an NIH imprimatur, which basically says
    this is okay, because indeed, anywhere from 50 to 90 percent of
    all articles that journals receive are rejected.
        So you would have to use--well, I won't use the word, but
    you would have a lot of inappropriate stuff out there.
        Mr. Goodlatte. There would be a lot of public discussion
    about controversial----
        Mr. Frank. Well, even more controversial discussions about
    science than we currently have, right?
        Mr. Goodlatte. Right.
        Dr. Zerhouni. With potential impact on people's lives.
        Mr. Frank. And the most dangerous part is the impact of
    people using non-peer reviewed stuff that could actually hurt
    them, and that would be very dangerous.
        Mr. Goodlatte. Thank you.
        Thank you, Mr. Chairman.
        Mr. Berman. Myself, a very short second round.
        I guess just with Mr. Goodlatte, Heather Joseph, wearing
    only the hat of mother and not the other hats, which presumably
    gave her a level of sophistication, looking at an un-peer
    reviewed article and either taking solace in an un-peer
    reviewed manuscript and either taking comfort or direction from
    that might be going down a trail that would leave her even more
    distressed and upset, I don't know.
        I see what you are saying. I am still somewhat torn on the
    issue that is before us.
        Dr. Zerhouni, I get a little nervous when you go from
    taxpayer-funded health and biomedical research to notions of
    taking advantages of technology. I mean, the N in NIH is not
    Napster.
        And maybe two questions, one for you and one for Dr. Frank
    and Mr. Oman.
        To you, I don't--get a little more explicit with me on
    your--you showed some very interesting slides at the beginning.
    You made an obviously good and compelling argument about when
    you just get all the information dumps in little segments,
    without connectivity, the ability to advance and take advantage
    of what has been discovered is slowed tremendously and against
    public interest.
        But I didn't quite understand what your policy has to do
    with the connectivity side of it, and maybe that is the
    limitations of my own imagination.
        Spoon feed me here.
        Dr. Zerhouni. Okay. So as you know, traditionally, the
    public--the private sector generates information, publishes it,
    whether it be federally-funded or not.
        The archiving, the keeping over time, the curation and
    making that available to a larger community has always been
    funded by the public sector through libraries.
        Now, libraries today, because of the new technologies and
    the fact that we are not dealing with paper, but electronic
    information, have developed very powerful tools.
        So the role of the NIH is to connect this database, which
    is going to be done through a single standard, where we can
    really look at the content of the article and then, as I showed
    you on the slide, connect it through all of the other
    information.
        Mr. Berman. But Google can do that.
        Dr. Zerhouni. No, Google does not do that. Google refers
    back to us, as I showed you on the slide. No outside entity
    does that----
        Mr. Berman. When you are publishing that peer reviewed
    scholarly publication 1 year or, in many cases, less than 1
    year after the date of publication, what are you doing to
    connect that article to every other article?
        Dr. Zerhouni. I would like to brief you on the technology
    that we have developed, and Dr. Lipman is here, who is a member
    of the National Academy of Sciences, because of the work he had
    done in understanding that all of the information connectivity
    really increases the amount of information that you expect from
    any one paper.
        Just reading the paper is not enough. You need to have a
    concept and if that concept connects, it is really the next
    step, way beyond the technologies of today, where, if you did a
    Google search, you would have in mind the ideas within the
    paper and say, ``I want to know everything there is to know
    about every aspect of that paper.''
        If I don't have the publication to start with, my search
    cannot go anywhere.
        Mr. Berman. But practically--just pushing here to try and--
    explain to me, in real terms, all right, these journals are
    very expensive, but there is value, obviously, to these
    journals. That is the way this peer review process has been
    created.
        So you are getting experts analyzing research by other
    experts and commenting and letting know whether this is worthy
    of drawing conclusions about validity from.
        It is expensive, but libraries subscribe, university
    communities subscribe and all this. Meanwhile, Time Magazine
    has a medicine section and they get a hold of these articles
    and they now turn it into articles for laypeople under fair
    use, which let Heather Joseph, mother, know about some new
    discoveries.
        And medical editors on television news shows and special--I
    mean, there are ways in which this thing gets disseminated
    which aren't limited to being the subscribers to the
    publication.
        Why isn't that system working pretty well?
        Dr. Zerhouni. It is currently available. It is available
    today. You know that many--two million articles are available
    freely after 12 months of publication.
        But the exploitation of that cannot occur unless you have
    the ability to truly search in the meaning of what is in those
    articles and interconnect them to the totality of the
    scientific information.
        Without that tool, all of the downstream exploitation just
    can't happen.
        Mr. Berman. Anybody else want to----
        Ms. Joseph. Heather Joseph, as a mother, wanted that
    information for a very immediate reason. Heather Joseph, as a
    mother and as a taxpayer, also wants my doctor to have that
    information.
        I not only want my doctor to have that information, I want
    every scientist working on diabetes research to have
    information and be able to make new linkages to do what Dr.
    Zerhouni described is being in autism.
        I want those genes isolated. I want scientists to be able
    to read the paper, go from a paper and think about things they
    are not thinking about in diabetes research right now.
        I want to enable not just myself to find information at 3
    a.m., which is very important, don't get me wrong, but even
    more important to me is that my son will have every available
    advantage in terms of researchers in the United States being
    informed, having access to the information or the research that
    we are funding, and make these new and novel connections that
    are needed to make the leaps to move from basic research at the
    NIH to treatment for this kind of a disease.
        Mr. Berman. And here is this physiologist who has a
    nonprofit company, but surely doesn't he want that as much as
    you want that?
        Ms. Joseph. I ask him that regularly.
        Mr. Frank. But, Heather, I haven't seen you for 3 months.
        I think what NIH is--and I have said this to Dr. Zerhouni
    in a meeting we had in November of 2006. As a scientist, PubMed
    Central, what we have seen here today is brilliant.
        It links a multitude of databases that exist within the NIH
    family to the research articles that they support.
        The regrettable thing is, as Dr. Zerhouni said, NIH funds
    about 80,000 articles a year, a cost, as he said, that
    translates into $24 million.
        However, if you look into PubMed, which is a database of
    abstracts, it lists about five to six million articles a year
    that are published and catalogued in PubMed.
        Mr. Berman. Based on the choice of the publishers.
        Mr. Frank. Well, the abstracts, publishers have made a
    choice to deposit abstracts. The reason why I bring it up is
    what NIH has created, and you saw all the genes that were
    developed as a result of linkages to the articles that reside
    in PubMed Central, does not take into account that there is 90
    percent of the research that is not catalogued within PubMed
    Central and, as such, does not contribute to creating a dynamic
    and vital database that can enhance science.
        I raise that because it is critically important. Dr.
    Zerhouni, Dr. Lipman, and others at NIH, there are brilliant
    technology people who can solve a problem that we brought to
    NIH many years ago, which Mr. Oman has just raised, which is a
    creation of an internal archive.
        The National Library of Medicine, one of the institutes of
    NIH, preserves the print literature for us. They do a wonderful
    job. I have said to Dr. Lindberg, the director of NLM, that we
    all went about this the wrong way.
        NLM should have volunteered to preserve the bits and bytes
    of all our journals, all 5,000 covered in PubMed, all five
    million to six million articles.
        Mr. Berman. But how does that help the doctor in Podunk
    City who wants to know the latest research?
        Mr. Frank. Mr. Berman, what that does is it would create an
    internal archive. NIH's technology and IT people would do the
    same thing they are doing now with the PMC articles. They would
    be able to search all that literature and come up with many of
    the answers that they do now, but on the entirety of
    literature.
        And the end result, as we suggested to Dr. Zerhouni, if a
    hit came to an article that was not in PubMed Central or was
    not available to them, they would link out to the journal and
    the journal would provide access within the framework of their
    embargo periods, with a modest fee, or whatever.
        Other arrangements could have been set up that we would
    have given access to the content. We could have given content
    access. But instead, they have tried to do it by taking the
    peer reviewed manuscripts from those publishers who publish
    NIH-funded research.
        Mr. Berman. My time has sort of triple expired. I think
    even though this may be the last hearing, I still ought to
    recognize Mr. Coble.
        Mr. Coble. Thank you, Mr. Chairman.
        Thank you all again, witnesses.
        I have just one question, Mr. Chairman, and I am going to
    direct it to Mr. Oman.
        Mr. Oman, as an analogy to patents developed with Federal
    funding relevant to our debate, let me put a two-part question
    to you.
        How has the Bayh-Dole Act performed in the last 2 to 2 1/2
    decades, A; and, B, was Congress indulged in a similar debate
    when Bayh-Dole was written and debated?
        Mr. Oman. I think the lessons that we learned, Mr. Coble,
    from Bayh-Dole are very relevant here today.
        Bayh-Dole was adopted in recognition of the fact that
    inventions developed with taxpayer money weren't being
    commercially exploited because they couldn't be turned over to
    the private sector.
        The government had no real vested interest in
    commercializing these wonderful inventions and the money that
    was invested wasn't serving the public.
        Bayh-Dole allowed those inventions to be commercially
    exploited, relying on the extraordinary energy and innovation
    of the private sector to do what had to be done to get them
    into public commerce.
        The same is true on the copyright side. The private sector
    has that commercial drive. They have the ability to innovate.
    They can work cooperatively with the government and with the
    NIH in developing a system that is going to serve all parties.
        But to do that, they need that basic copyright protection
    that allows them to make the investments up front without
    getting any immediate reward, any immediate compensation for
    their investment, but over the life of the copyright, would
    allow them to recoup that investment as normally is done under
    the copyright laws.
        Mr. Coble. I thank you for that.
        I yield back, Mr. Chairman.
        Mr. Berman. I can be permitted a snide comment and since I
    am the one giving permission, it is perhaps that feature that,
    at least in my experience on the legislation involving reform
    of our patent laws, has made the universities operate like they
    were pharmaceutical companies.
        But in any event, I realize we haven't--there is a lot more
    to exhaust here.
        Is there anything else you guys want to take a minute to
    say? Because I can tell one of our witnesses does.
        Mr. Frank. Just thank you.
        Dr. Zerhouni. I just want to go back to the concept of the
    dark archive. That is what it is, dark, glove box,
    inaccessible. I don't think that is what----
        Mr. Berman. But the dark archive is our solution to the
    Orphan Works problem. Never mind.
        Mr. Frank. I would prefer to call it internal archive that
    could be used within the NIH family. I don't think it is quite
    dark.
        Mr. Berman. Thank you all very much for coming. It has been
    a very interesting hearing and we appreciate it.
        [Whereupon, at 2:54 p.m., the Subcommittee was adjourned.]

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                   Material Submitted for the Hearing Record