NIH Public Access Policy to become mandatory

[Guest guest]

Monday Jan 07, 2008

NIH Public Access Policy to become mandatory

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

ess_policy_to

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.

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.

[ 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 Cockerill at 19:52 Comments (8)

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Comments:

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.

Posted by Bernshaw on January 16, 2008 at 04:19 AM GMT #

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.

Posted by Chang on January 16, 2008 at 01:30 PM GMT #

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!

Posted by Masterson on January 16, 2008 at 01:45 PM GMT #

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 " ?

Posted by 165.91.28.90 on January 16, 2008 at 02:46 PM GMT #

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.

Posted by donald klein md on January 16, 2008 at 03:42 PM GMT #

Also note recent ACNP symposium available re post -marketing

sueveillance at www.acnp.org

Don Klein

Posted by donald klein md on January 16, 2008 at 03:46 PM GMT #

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 Ehrle, M. Ed., Senior Biomedical Policy Analyst (pro

bono),

Organic Consumers Association (OCA) and Chair of its special

project, the International Science Oversight Board

Posted by Lynn Ehrle on January 16, 2008 at 04:18 PM GMT #

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.

Posted by Veranth on January 16, 2008 at 05:44 PM GMT #

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