Change to NIH Public Access Policy

[This might be of interest to some who like to read more than abstracts.
Tom]

http://blogs.openaccesscentral.com/blogs/bmcblog/entry/nih_public_access_policy_to

NIH Public Access Policy to become mandatory


Many open access advocates will already have heard that NIH's Public Access
Policy http://publicaccess.nih.gov/ , 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
http://www.earlham.edu/%7Epeters/fos/newsletter/01-02-08.htm#nih  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

http://www.pspcentral.org/publications/AAP_press_release_NIH_mandatory_policy.pdf and STM https://mx2.arl.org/Lists/SPARC-OAForum/Message/4142.html 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."

Mind boggling stuff...

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
http://www.biomedcentral.com/browse/journals/  from BioMed Central and around
3000 more http://www.doaj.org/  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

http://www.earlham.edu/%7Epeters/fos/2008/01/aappsp-response-to-oa-mandate-at-nih.html
and here

http://www.earlham.edu/%7Epeters/fos/2008/01/stm-response-to-oa-mandate-at-nih.html respectively.

Update: 14th Jan 2008
The NIH has released the text of its new policy
http://grants.nih.gov/grants/guide/notice-files/NOT-OD-08-033.html , and has
also created an accompanying Public Access FAQ
http://publicaccess.nih.gov/FAQ.htm .