Open Access News

Andrew Albanese, Congress Backs NIH Access Policy, But Publishers Resist, Library Journal, July 23, 2007.

After two ineffective years of a National Institutes of Health (NIH) policy that requested researchers to deposit copies of their final papers in PubMed Central (PMC), both the U.S. House of Representatives and the Senate have included provisions in their 2008 appropriations bills that would require deposit of NIH-funded researchers’ final papers within one year of publication. While public access advocates hailed the policy, passed by the House July 19 and headed for a Senate vote, publishers remain bitterly opposed to the policy and have seemingly laid the groundwork for a legal challenge.

Unlike in 2004-2005, when the NIH first attempted to require public access to the research it funds only to see that policy gutted at the eleventh hour under heavy lobbying from publishers, the process to draft and implement this policy took place largely behind the scenes. However, publishers introduced a new argument, charging that the policy conflicts with the rights of copyright owners. Indeed, language added in the final draft of the House bill requires the NIH policy be applied "in a manner consistent with copyright law," setting up a potential challenge.

Although experts say the NIH is within its legal rights to require public access as a condition of receiving funds, the copyright issue could delay implementation. However, with Congress taking note of the previous policy’s ineffectiveness—voluntary deposit in PMC lagged at around five percent last year—Heather Joseph, executive director of SPARC (the Scholarly Publishing and Academic Resources Coalition), suggested there was enough momentum in Congress to hold firm. Meanwhile, some NIH supporters raised concerns about the new policy, questioning whether mandating deposit in a single government database with a one-year embargo would be effective in an increasingly distributed Internet age, where open access publishing and author self-archiving are also making strides.

Comment.  To be more precise, a lawsuit would delay implementation even if copyright law would not.  And delay would be the sole purpose of a lawsuit.  There’s no doubt that an OA mandate at the NIH could be implemented “in a matter consistent with copyright law”.  There are many ways to do it.  For example, the NIH could use the fact that the OA editions will not be the published editions on which authors transfer copyright but merely the final versions of the authors’ peer-reviewed manuscripts.  Or the NIH could use the the existing government-purpose license to distribute the results of publicly-funded research.  Or the NIH could make the OA condition an explicit term of the funding contract and require grantees to make any subsequent copyright transfer agreements subject to the terms of the prior funding contract.  Publishers who try to boost voluntary compliance with the current policy, as a tactic to head off a mandate, are effectively conceding that compliance need not cause copyright problems.