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.