[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.]

                            A P P E N D I X

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