U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

44–326 PDF 2009

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 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

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 

RICK BOUCHER, Virginia 

ROBERT WEXLER, Florida 

MELVIN L. WATT, North Carolina 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ZOE LOFGREN, California 

BETTY SUTTON, Ohio 

HOWARD COBLE, North Carolina 

TOM FEENEY, Florida 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

SHANNA WINTERS, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

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 

(1) 

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. 

2 

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 

3 

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:] 

4 


HR6845-1.eps
5 


HR6845-2.eps
6 


HR6845-3.eps
7 


HR6845-4.eps
8 


HR6845-5.eps
9 


HR6845-6.eps
10 

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. 

11 

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. 

12 

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 

13 

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 BayhDole 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, 

14 

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. 

15 

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 

16 

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 

17 

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 

18 

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:] 

19 

PREPARED STATEMENT OF ELIAS A. ZERHOUNI


EAZ-1.eps
20 


EAZ-2.eps
21 


EAZ-3.eps
22 


EAZ-4.eps
23 


EAZ-5.eps
24 


EAZ-6.eps
25 


EAZ-7.eps
26 


EAZ-8.eps
27 


EAZ-9.eps
28 


EAZ-10.eps
29 

ATTACHMENT 


EAZA-1.eps
30 


EAZA-2.eps
31 


EAZA-3.eps
32 


EAZA-4.eps
33 


EAZA-5.eps
34 


EAZA-6.eps
35 


EAZA-7.eps
36 


EAZA-8.eps
37 


EAZA-9.eps
38 


EAZA-10.eps
39 


EAZA-11.eps
40 


EAZA-12.eps
41 


EAZA-13.eps
42 


EAZA-14.eps
43 


EAZA-15.eps
44 


EAZA-16.eps
45 


EAZA-17.eps
46 


EAZA-18.eps
47 


EAZA-19.eps
48 


EAZA-20.eps
49 


EAZA-21.eps
50 

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. 

51 

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. 

52 

[The prepared statement of Mr. Oman follows:] 

PREPARED STATEMENT OF RALPH OMAN


RO-1.eps
53 


RO-2.eps
54 


RO-3.eps
55 


RO-4.eps
56 


RO-5.eps
57 


RO-6.eps
58 

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 pubVerDate Aug 31 2005 16:40 Feb 18, 2009 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\091108\44326.000 HJUD1 PsN: 44326
59 

lish 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 

60 

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


HDJ-1.eps
61 


HDJ-2.eps
62 


HDJ-3.eps
63 


HDJ-4.eps
64 


HDJ-5.eps
65 


HDJ-6.eps
66 


HDJ-7.eps
67 


HDJ-8.eps
68 


HDJ-9.eps
69 


HDJ-10.eps
70 


HDJ-11.eps
71 

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-forprofit 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. 

72 

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:] 

73 

PREPARED STATEMENT OF MARTIN FRANK


MF-1.eps
74 


MF-2.eps
75 


MF-3.eps
76 


MF-4.eps
77 


MF-5.eps
78 


MF-6.eps
79 


MF-7.eps
80 


MF-8.eps
81 


MF-9.eps
82 

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. 

83 

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 postresearch 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? 

84 

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. 

85 

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? 

86 

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. 

87 

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? 

88 

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? 

89 

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. 

90 

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. 

91 

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. 

92 

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 

93 

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 unreviewed 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 nonpeer 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. 

94 

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 taxpayerfunded 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 

95 

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. 

96 

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. 

97 

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.] 

(99) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

100 


A-1.eps
101 


A-2.eps
102 


A-3.eps
103 


A-4.eps
104 


A-5.eps
105 


A-6.eps
106 


A-7.eps
107 

f 


A-8.eps
108 


B-1.eps
109 


B-2.eps
110 


B-3.eps
111 


B-4.eps
112 


B-5.eps
113 

f 


B-6.eps
114 


C-1.eps
115 


C-2.eps
116 


C-3.eps
117 


C-4.eps
118 


C-5.eps
119 


C-6.eps
120 


C-7.eps
121 


C-8.eps
122 


C-9.eps
123 

f 


C-10.eps
124 


D-1.eps
125 


D-2.eps
126 


D-3.eps
127 

f 


D-4.eps
128 


E-1.eps
129 


E-2.eps
130 


E-3.eps
131 


E-4.eps
132 


E-5.eps
133 


E-6.eps
134 


E-7.eps
135 


E-8.eps
136 


E-9.eps
137 


E-10.eps
138 


E-11.eps
139 


E-12.eps
140 


E-13.eps
141 


E-14.eps
142 


E-15.eps
143 


E-16.eps
144 


E-17.eps
145 


E-18.eps
146 


E-19.eps
147 


E-20.eps
148 


E-21.eps
149 


E-22.eps
150 


E-23.eps
151 

f 


E-24.eps
152 


Lee-1.eps
153 


Lee-2.eps
154 

f 


Lee-3.eps
155 


F-1.eps
156 


F-2.eps
157 


F-3.eps
158 


F-4.eps
159 

f 


F-5.eps
160 

f 


G.eps
161 


H-1.eps
162 

f 


H-2.eps
163 


I-1.eps
164 


I-2.eps
165 

f 


I-3.eps
166 

f 


I-4.eps
167 

f 


I-5.eps
168 

f 


I-6.eps
169 


I-7.eps
170 


I-8.eps
171 

f 


I-9.eps
172 

f 


I-10.eps
173 


I-11.eps
174 

f 


I-12.eps
175 


I-13.eps
176 

f 


I-14.eps
177 


I-15.eps
178 

f 


I-16.eps
179 


I-19.eps
180 

f 


I-20.eps
181 


I-21.eps
182 


I-22.eps
183 

f 


I-23.eps
184 


I-24.eps
185 

f 


I-25.eps
186 


I-26.eps
187 

f 


I-27.eps
188 


I-28.eps
189 

f 


I-29.eps
190 


I-30.eps
191 

f 


I-31.eps
192 

f 


I-32.eps
193 

f 


I-33.eps
194 

f 


I-34.eps
195 


I-35.eps
196 

f 


I-36.eps
197 


I-37.eps
198 

f 


I-38.eps
199 


I-39.eps
200 

f 


I-40.eps
201 

f 


I-41.eps
202 

f 


I-42.eps
203 


I-43.eps
204 

Æ 


I-44.eps