When Congressman Martin O. Sabo introduced a bill in the US House of Representatives on June 26 that would make research funded by the American government exempt from copyright protection, he had no idea of the controversy it would generate amongst the research and publishing communities.

"Some of my staff brought the issue to my attention and I thought it made a lot of sense, so I introduced the bill," said Sabo, a Democrat Representative from Minnesota. "I have discovered that it's generated lots of interest and lots of controversy. There are lots of scientists who are very interested. And clearly there are people involved in the publishing industry who are making the case for their role in the whole process."

Currently, work produced by federal employees is exempt from copyright protection, but this doesn't cover grant recipients. The bill, officially called the 'Public Access to Science Act' but also referred to as the 'Sabo bill', aims to amend existing US copyright law so that research that has been "substantially funded" by the US federal government can also not be copyrighted, ensuring its free availability to the public.

"The bill is really fairly simple. I think that it's a fundamental principle that research that has been funded by the public sector should be generally available to the public free of charge," Sabo told Open Access Now. He feels strongly that US residents shouldn't have to pay twice - once through taxation to fund research and a second time to gain access to the results.

It's a fundamental principle that research that has been funded by the public sector should be generally available to the public free of charge

Martin Sabo

"It's wrong when a breast cancer patient cannot access federally funded research data paid for by her hardearned taxes," said Sabo in a press statement. "It is wrong when the family whose child has a rare disease must pay again for research data their tax dollars already paid for. Common sense dictates we provide the most cutting-edge research to all who may benefit from it - especially when they've already paid for it with their tax dollars, and my legislation will do just that."

When pushed on what "substantially funded" means, Sabo concedes "We haven't quite sorted that out yet. We'll have to define that either by law or regulation and come up with a more precise definition of the percentages." The fact that "substantially" is not defined in the bill might allow the many federal agencies that fund research to define it in their own ways.

Peter Suber, an Open Access pioneer at Earlham College, USA, has called the Public Access to Science Act "the boldest and most direct legislative proposal ever submitted on behalf of Open Access," and has made suggestions that he feels would enhance the bill's effectiveness. "Putting works into the public domain and obtaining copyright - holder consent to Open Access are not themselves Open Access," explains Suber. "They are merely two ways to clear the legal path to Open Access."

"The Public Access to Science Act could go further and require actual Open Access. It could require funded researchers to submit their work to Open Access journals or deposit it in Open Access archives." Suber suggests additional measures to ensure that copyright legislation accelerates the switch to Open Access. "[The bill] could require federal research grants to cover the processing fees charged by Open Access journals - that is, [it] could treat Open Access publication as a cost of research." This approach is already being taken by some funding agencies, such as the Howard Hughes Medical Institute (see Open Access Now, July 14, 2003).

The Sabo bill has sparked heated debate within the life sciences community about the importance of copyright and the role of traditional publishers. The bill is supported by the Public Library of Science (PLoS), a non-profit organization that is developing models for Open Access publishing, but some have questioned the consequences of removing copyright protection.

Michael J. Held, Executive Director of Rockefeller University Press (RUP), calls the bill "a hasty and ill-timed measure". In an editorial in the Journal of Cell Biology, Held wrote "I take issue with a number of the points made by the Sabo Act. It appears to me that this is a thinly veiled attempt by Harold Varmus and the other founders of the Public Library of Science (PLoS) to eventually force all publishers into their Open Access publishing model. As this publishing model is unproven and may well be unsustainable, this is an irresponsible act."

Held says that "publishers such as RUP seek to hold secure copyright so that we can ensure that we have both the legal right and the resources to guarantee free access, albeit after a brief interval." Held's editorial was freely available online prior to publication, to ensure that it reached a wide audience.

The Association of American Universities (AAU) has also opposed the bill. In a letter to Sabo's office, AAU president Nils Hasselmo expressed the view that denying copyright protection for publications resulting from federally funded research was unnecessary and could prove "quite harmful to the nation's research enterprise." He maintains that copyright protection is important for assuring accuracy and authenticity of publications and maintaining the current publishing process.

The senior editors at PLoS have written a reply to Held and other critics who have, among other points, raised the specter of increased plagiarism in the absence of copyright protection. "Although some concern has been voiced about the consequences of excluding copyright protection, its removal will not leave authors or their works vulnerable to abuse," they say. "Copyright has not been used by publishers or individual authors to protect the integrity of the scientific literature. Rather, rigorous standards of behavior within the scientific community have provided the best deterrent from abuse (including against acts of plagiarism and misuse of another's work)."

Sabo is undeterred by the opposition his bill has met. "Clearly anytime that you are doing something different there are going to be people who are apprehensive and nervous about that. I have already heard from publishers expressing their concern and I am sure there will be others. People in the publishing business will continue to have an important role but it will involve some change for them. But I have also heard from lots of people supporting the bill. This is just the beginning and it will probably take a while. But we are going to be pushing forward."

Since the bill's introduction, comment on the issue of access to research data has been made at a meeting of the House Appropriations Committee, which allocates the federal budget for the National Library of Medicine (NLM) - next year's budget will be US$316 million. The Committee commended the NLM for its leadership in developing PubMed Central (see Open Access Now, July 28, 2003) and expressed its concern about "reports that there has been a significant change in the availability of research data internationally and a dramatic rise in medical research data subscription costs. NLM is encouraged to examine how the consolidation of for-profit biomedical research publishers, with their increased subscription charges, has restricted access to vital research information to not-for-profit libraries." The Committee asked for a report by March 2004 on ways to ensure that taxpayerfunded research remains in the public domain and to alleviate restrictions on the availability of information.

The Public Access to Science Act is the boldest and most direct legislative proposal ever submitted on behalf of Open Access

Peter Suber

Congressman Sabo's bill is stimulating debate about
copyright and open access.

The Sabo bill is likely to generate other legislative fallout. "I hope it has impact in other countries too," says Congressman Sabo. Already there are signs in the UK that the call for Open Access to government-funded research is moving from the academy to the legislature. Dr Ian Gibson, UK Member of Parliament for Norwich North and Chairman of the House of Commons Select Committee for Science and Technology, has submitted a question to the new UK Secretary of State for Health that asks "what plans he has to ensure that all publicly funded research is recorded and made freely available to patients, health professionals, the public and members of the scientific community." Health Secretary John Reid is expected to answer Gibson's question by September 8.

The Sabo bill will now go to a series of hearings and committees, starting with the Judiciary committee. "It's a long process that could take many months. Our system moves slowly," says Sabo. "I have no guarantee that it will become law. But we are expecting to stimulate lots of debate about this important issue."