The publisher complaint boils down to this: “OK, the policy doesn’t violate the letter of copyright law, but it violates the spirit, which is that our ability to profit from research we didn’t conduct, write up, or fund should not be put at risk just so that publicly-funded research can be made more useful, by reaching everyone who can make use of it, or just so that taxpayers don’t have to pay twice for access. OK, it’s true that authors are the initial copyright holders in their work, and they are free to transfer all, some, or none of their rights to publishers. But the spirit of copyright law is that they should transfer all of their rights to publishers. We’ve grown to depend on it. OK, it’s true that we don’t really know that the NIH policy will reduce our revenues, and there may be good reasons to think it won’t, but at least the policy creates a risk. The government should protect us from risks created by new new and better ways of doing things. It violates the spirit of copyright law for a government agency like the NIH to put the taxpayers’ interests ahead of our private interests as an industry.”
(Again, nothing definite yet. It looks like the hearing may have been scheduled and then pushed back; there’s a hearing with “Fair Copyright in Research Works Act” in the page title, but the content lists “the Continuing Investigation into the U.S. Attorneys Controversy and Related Matters.”)
No big surprise here. Publishers make a ton of money locking up publicly funded research behind fee-for-view journals and databases; open access mandates kill that cash cow. As more folks move to open access, I imagine this fight will get even nastier. Expect legislation that attempts to bar public universities from joining the Harvard A&S faculty in making open access the norm for all research.