BioMed Central Blog

NIH Public Access Policy to become mandatory

Many open access advocates will already have heard that NIH's Public Access Policy, until now voluntary, is set to become mandatory following President Bush's approval on Dec 26th 2007 of the latest NIH appropriations bill, which includes the following wording:

"The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."

This is great news both for researchers and for the general public. Peter Suber's January SPARC Open Access Newsletter contains a detailed analysis of what the change means, and identifies some of the key issues that remain to be resolved.

Perhaps predictably, the publishing organizations who had lobbied strenuously but unsuccessfully against the new policy have lost no time in issuing statements condemning it and forecasting dire consequences. Statements from the Association of American Publishers  and STM appear to take the curious position that it is the publishing organizations who are the rightful owners of the intellectual results of scientific research, and that the NIH is taking an appalling liberty by asserting, on behalf of the public, any rights at all over these results.

According to the AAP:

"[C]hanging to a new mandatory policy that will ‘require’ such submission eliminates the concept of permission, and effectively allows the agency to take important publisher property interests without compensation, including the value added to the article by the publishers’ investments in the peer review process and other quality-assurance aspects of journal publication. It undermines publishers’ ability to exercise their copyrights in the published articles, which is the means by which they support their investments in such value-adding operations"

According to STM, meanwhile:

"The legislation neither provides compensation for the added-value of services that these manuscripts have received from publishers nor does it earmark funds to ensure the economic sustainability of the broad and systematic archiving this sort of project requires. It also undermines a key intellectual property right known as copyright - long a cornerstone used to foster creativity and innovation."

The first point to make, in response, is to note the matter of timing. A potential author signs an agreement with NIH concerning the conditions of their grant funding long before any manuscript resulting from that funding is submitted to a publisher. If a publisher does not like the NIH policy, they are within their rights to choose not to consider submissions from NIH-funded authors. But a publisher cannot reasonably claim that NIH is appropriating its intellectual property, since the author's pre-existing contractual agreement, at the point of manuscript submission, is entirely with NIH, not with the publisher. The publisher has no claim whatsoever over the research at that point.

Secondly, copyright, far from being threatened by open access, is the essential legal framework that makes open access possible. The Creative Commons open access license, under which all BioMed Central research articles are distributed, depends entirely on copyright for its legal validity. Traditional publishers may not like an arrangement in which they are no longer the exclusive copyright owners, but that hardly means that such a situation 'undermines' copyright.

Thirdly, and finally: in financial terms the investment made by a publisher in managing the peer-review and publication process for a typical biomedical research publication amounts to roughly 1% of what was invested by the funder in carrying out the research. (i.e. a few thousand dollars of input by the publisher, compared to a few hundred thousand dollars spent by the funder). In such circumstances, it is quite something for the publishers to claim that they are hard done by if they do not receive exclusive rights to the resulting research article in return for their efforts...

In the context of the publication of original scientific and medical research articles, publishers are not the content creators, nor should they be the content owners. Publishers are service providers, and should compete to provide the best service to the scientific community on that basis. 180+ open access journals from BioMed Central and around 3000 more listed in the Directory of Open Access Journals demonstrate the appeal and viability of this approach.

[Peter Suber has posted detailed rebuttals of the AAP and  STM statements, here and here respectively.]

Update: 14th Jan 2008 
The NIH has released the text of its new policy, and has also created an accompanying Public Access FAQ. 

Posted by Matthew Cockerill at 19:52    Comments (11)

Like this post?  Bookmark it Digg it Slashdot it Find links to it