NIH Public Access Policy to become mandatory

- 11 Comments

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."

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 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

  • jaime chang

    It seems appropriate to say that most research is funded by some kind of public money, be it the US or other Government Agency, a multinational institution (like the World Health Organization), or a private institution of public character (Universities). Furthermore, in many cases research activity is commanded by a public institution or done as part of its activity.
    Intellectual rights of an article or report belong to the person or entity that originated the research, and/or conducted the analysis of the data and/or produced information. I.e. to those who made a major intellectual contribution in the process.
    Research funded by private agent as part of its R&D may or may not be published as an article (differentiate this from management of information of public interest and/or from the utilization of the information they produce).
    The publishers, generalizations allowed, do not originate research, fund it, conduct it, nor produce information based on data obtained. What they basically own is the format, unless the authors concede their intellectual right.
    It is clear that peer reviewed, high quality, open access publishing is possible. If some publishers can not adapt to current times, it is their fault.

  • angela masterson

    I think this is fantastic news for anyone working in healthcare. This move will assist health care workers in keeping their knowledge up to date without having to worry about the costs of subscribing. Thank you NIH!

  • Anonymous

    I am all for this open access policy. As an external reviewer for several journals, I did not get paid any penny of doing that. So what does that mean by AAP that “publishers’ investments in the peer review process”?

  • donald klein md

    Open access to just what??
    As scientists we are interested in protocol details sufficient to replicate study–and the raw data by subject and occasion of measurement sufficient to reanalyse data.
    the current data summaries are constricted by historical paper journals–but not by the internet. combined with registries the current problem in product evaluation–acutely-would be fixed.
    the problem with postmarketing surveillance for safety,efficacy across non FDA treatments-eg surgery,psychotherapy,nutraceuticals–takes an entirel different level of integrated computerized cross-linked medical , lab,coroner etc public,records.

  • donald klein md

    Also note recent ACNP symposium available re post -marketing sueveillance at http://www.acnp.org
    Don Klein

  • lynn howard ehrle

    The move to protect and promote the public’s investment in NIH-funded research is long overdue. It is a blow to the escalating threats posed by the corporatization of medicine. Intellectual property rights have been invoked to deny public access to taxpayer-funded research. All concerned health care professionals and patient advocates should be vigilant and continually assess the execution of this policy. The devil is in the details.

    Lynn Howard Ehrle, M. Ed., Senior Biomedical Policy Analyst (pro bono),
    Organic Consumers Association (OCA) and Chair of its special project, the International Science Oversight Board

  • nicole bernshaw

    What a wonderful move on NIH’s part! I have experienced much frustration in being denied access to information because I was not a subscribing patron of this or that journal, information that would have helped me in giving care to my clients. I also applaude the astute and helpful analysis of the consequences of NIH’s decision in the BioMed Central Blog of Monday January 7, 2008. Finally, the target readership will be able to access precious information without financial restrictions to better serve the people they care for, in my case, in the health “industry.”
    Thank you, thank you, thank you.

  • john veranth

    Regarding the publisher’s investment in the peer-review process, the key element in quality peer review is the volunteer services provided by the reviewers.

  • http://depth-first.com rich apodaca

    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.

    Not entirely accurate. All that the publishers are claiming is the right to copyright, which each and every author of a scientific paper for the journals in question willingly signed away.

  • http://www.fos.su.se/~svenh/index.html sven hovmöller

    Thank you NIH for this excellent decision! I hope and expect that this major step towards open access will be followed in Europe and elsewhere, as well as in other scientific fields than medicine and biochemistry. I totally agree that 99% of the costs is given by the grant agencies and 100% of the intellectual and physical efforts for a scientific publication is done by the authors. The peer-review is done by scientists (unpaid) and not by the publishers. Actually WE pay the publishers more than 100% of their costs, through subsription fees that are high enough to allow large profits for the publishers.

  • john a. mozzer

    I doubt that publishers of scientific and medical journals can make big profits in this digital age.

    Printing on paper is very expensive. The publishers’ complaints remind me of what has been going on in the music industry regarding downloadable music, the film and television production industry regarding the writers’ strike, newspaper publishers competing with online sources of news, and so on. At any rate, the journal publishers will have to accept the new realities of today’s world.