Open Access News

Publishers Say Enactment of NIH Mandate on Journal Articles Undermines Intellectual Property Rights Essential to Science Publishing, a press release from the Professional/Scholarly Publishing division of the Association of American Publishers (AAP/PSP), January 3, 2008.  I'm happy to quote the press release at length so that I can respond to it at length:

The Association of American Publishers today criticized a controversial new NIH research publication policy that was enacted as part of the omnibus appropriations package for 2008, and reaffirmed that journal publishers who have opposed the policy will continue to pursue their concerns with Congress regarding the policy’s negative impact on science publishing and the protection of related intellectual property rights. Publishers will also urge NIH to conduct a rulemaking proceeding, with opportunity for public comment, before implementing the new policy.

Allan Adler, AAP’s Vice President for Legal and Government Affairs, said the new policy is “unprecedented and inconsistent with important U.S. laws and policies regarding the conduct of scientific research and the protection of intellectual property rights.”

“These issues were never examined by Congress because the statutory authority for the new policy was enacted as a rider on appropriations legislation, without hearings or studies to assess its merits and without scrutiny from the Congressional committees that have expertise and legislative jurisdiction regarding laws governing federal scientific research programs and intellectual property rights,” Adler added.

Under the previous voluntary NIH policy, NIH-funded researchers who wrote articles for publication in scientific journals were “requested” to submit an electronic version of their final, peer-reviewed manuscripts to NIH immediately upon acceptance by a journal for publication, so that the agency could make it freely available to the international online world through its PubMedCentral web site no more than 12 months after the date of journal publication.

“But,” Adler noted, “changing 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. The NIH policy also threatens the intellectual freedom of authors, including their choice to seek publication in journals that may refuse to accept proposed articles that would be subject to the new mandate.”

“Journals published in the U.S. have strong markets abroad; indeed, in some fields of research, most sales are to institutions and individuals outside the United States,” Adler said. “A government policy requiring these works to be made freely available for international distribution is inherently incompatible with the maintenance of global markets for these highly successful U.S. exports. Smaller and non-profit scientific societies and their scholarly missions will be particularly at risk as their journal subscribers around the world turn to NIH for free access to the same content for which they would otherwise pay.”

Adler pointed out that Congress took a very different approach to ensuring public access to the results of government-funded scientific research when it reauthorized activities of the National Science Foundation in the “America COMPETES Act” enacted last August. “By addressing the issue through the regular legislative process, Congress not only avoided controversies over intellectual property interests in science publishing, but also recognized the value of publication in peer-reviewed science journals and the increasing availability of journal articles from a variety of sources. Instead of mandating free public access to articles published by private sector journals, Congress instructed the NSF ‘to provide the public a readily accessible summary of the outcomes of NSF-sponsored projects,’ along with ‘citations to journal publications’ in which funded researchers have published articles regarding such research.” (emphasis added)

“In the face of such a recent, relevant and rational precedent,” Adler concluded, “there was simply no sound reason for Congress to subsequently allow an appropriations rider to take an inconsistent and more controversial route toward achieving the same policy goal of enhancing public access to the results of scientific research funded by a federal agency.” ...

Comments

1. In December I predicted a publisher lawsuit to halt or delay the OA mandate at the NIH, and this press release suggests that we'll see one.  It's the public version of a legal brief.  Here's a point by point response.
2. "Publishers will also urge NIH to conduct a rulemaking proceeding, with opportunity for public comment, before implementing the new policy...."  The NIH released its draft policy for a 60 day period of public comments, ending on November 2, 2004.  It later extended the comment period to end on November 16, 2004.  More than 6,000 comments were submitted, which NIH Director Elias Zerhouni described as "overwhelmingly supportive."  The recent mandate language was subject to amendment on six occasions from June to October 2007.  Senator James Inhofe (R-OK) actually filed two amendments in October, one to weaken the language and one to delete it, but he withdrew them both when he couldn't drum up enough support for them.  The mandate language was subject to amendment again in December, after the Bush veto, when Congress had to cut provisions to make the bill acceptable to the President.
3. "Changing 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...."  I respond to this objection in the next seven bullets (4-10).
4. Any discussion of the copyright objection has to start with the fact that the NIH policy doesn't apply to the published articles, on which authors transfer copyright.  It only applies to the authors' peer-reviewed manuscripts.  This is true of the current, voluntary policy and it's true of the new bill strengthening the policy to a mandate.
5. The NIH mandate might or might not eliminate the concept of publisher permission.  Some funder mandates (like CIHR's) still require publisher permission and some (like the Wellcome Trust's) do not.  I hope the NIH mandate falls in to the second category, but it's still too early to say. 
6. One way that the NIH could dispense with publisher permission without violating copyright law is to rely on regulations, already adopted in the US, granting federal agencies a license to disseminate the results of the research they fund.  There are two versions of this license, the first (45 CFR 74.36(a), adopted in 2003) for all the agencies within the Department of Health and Human Services, including the NIH, and the second (2 CFR 215.36(a), adopted in 2005) for all federal agencies. 
7. There are at least two other ways in which the NIH could dispense with publisher permission without violating copyright.  I described them in the August issue of SOAN:  "(1) it could use the fact that the OA editions will be the author's peer-reviewed but unedited manuscripts, not the published editions on which authors transfer copyright.  (2) It could make the new OA requirement an explicit term in the funding contract and require grantees to make any subsequent copyright transfer agreements with publishers subject to the terms of the prior funding contract."
8. The AAP/PSP is forgetting that the bill enacted by Congress includes an all-important proviso:  "Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."  It's simply mistaken to say that the OA policy demanded by Congress requires violation of copyright.  It requires compliance with copyright.  If the AAP/PSP is worried that NIH will disregard this part of the instruction from Congress, then it's simply asserting a tautology:  if the NIH violates the law, then it will violate the law.
9. The AAP/PSP doesn't mention that it has actively worked to boost compliance with the voluntary policy (in order to head off pressure to convert it to a mandate).  This doesn't show that it welcomes the removal of publisher permission from the policy.  But it does show (1) that it presupposes publisher permission and (2) that it believes compliance will not harm publisher interests. 
10. More directly, the NIH policy is not a "taking" in the legal sense because it doesn't revise copyright law and relies entirely on contracts.  As SPARC, ARL, and the ALA put it in a September 2007 memorandum, "The [new] legislation concerns contract terms, not copyright exceptions....[T]he copyright owner retains complete control of his work, unless he chooses to accept NIH funding. The proposed provision simply provides that, in exchange for public funding, the investigator must deposit a copy of the articles stemming from that funding with PMC so that it can make it publicly available."
11. "The NIH policy also threatens the intellectual freedom of authors, including their choice to seek publication in journals that may refuse to accept proposed articles that would be subject to the new mandate."  Again the publishers pretend to speak for authors when their policy to lock up content harms them.  If some publishers hate the the NIH policy so much that they refuse to publish the work of NIH-funded authors, then author freedom will be limited by the publisher decision, not by the NIH policy, which is compatible with the participation of all publishers.  But in fact, no publishers of biomedical journals will refuse to publish work by NIH-funded researchers; the quality and quantity of that research are too great.  The AAP/PSP argument here amounts to this:  Please let us opt out without suffering the consequences of letting our competitors publish all that first-rate research.
12. "A government policy requiring these works to be made freely available for international distribution is inherently incompatible with the maintenance of global markets for these highly successful U.S. exports. Smaller and non-profit scientific societies and their scholarly missions will be particularly at risk as their journal subscribers around the world turn to NIH for free access to the same content for which they would otherwise pay."  This is irrelevant to the copyright argument, but it deserves an answer anyway.  Congress understood that conventional publishers depend on subscription revenue, which is why it gave them up to a year to recover their costs before PubMed Central released the peer-reviewed manuscripts to the public.  It's also why Congress only applied the policy to the author manuscripts, not to the published articles.  For the rest, the AAP/PSP is simply repeating the argument that green OA will undermine subscriptions, which I've answered at length in an article from September 2007 (see esp. Sections 4-10).  Finally, the appeal to small, non-profit publishers is deeply misleading.  Caroline Sutton and I have found 427 societies publishing 496 full OA journals, and 19 societies publishing 74 hybrid OA journals (to use our updated numbers).  These are more society publishers than have ever joined the AAP/PSP In opposing OA mandates.
13. "[A better policy would] recognize[] the value of publication in peer-reviewed science journals and the increasing availability of journal articles from a variety of sources...."  The OA mandate at the NIH will not bypass peer-reviewed journals.  On the contrary, it will only apply to articles already published in peer-reviewed journals.  It will enhance, not diminish, the value of "increasing availability of journal articles from a variety of sources".
14. "Instead of mandating free public access to articles published by private sector journals, Congress instructed the NSF ‘to provide the public a readily accessible summary of the outcomes of NSF-sponsored projects,’ along with ‘citations to journal publications’....In the face of such a recent, relevant and rational precedent...there was simply no sound reason for Congress to...take an inconsistent and more controversial route toward achieving the same policy goal of enhancing public access to the results of scientific research funded by a federal agency...."  It's true that Congress made a different recommendation in the COMPETES Act.  But why should policy A trump policy B instead of B trumping A?  If the criterion is recency, then the OA mandate at NIH is the most recent result of Congressional deliberation.  If it's rationality, then we have to look at the rationale  It's not true that "there was simply no sound reason" for Congress to demand an OA mandate from the NIH.  The reasons were overwhelming.  Congress wanted to accelerate research and share knowledge; to give taxpayers (including professional researchers) access to the research for which they have already paid; to increase the return on the government's enormous investment in research; and to remedy the well-documented failure of the voluntary policy.
15. Finally, since AAP/PSP brings up the subject of taking without compensation, I can add this.  If the AAP/PSP had its way, then it would take something of value from U.S. taxpayers without compensation:  access to the results of research for which they have already paid in three ways, namely, through the NIH research grant, through researcher salaries at public universities, and through subscription fees at public universities. Private-sector scientific publishers have been huge beneficiaries of public investment and the NIH policy is one small step to give the public something to show for that investment.

Update.  See Andrea Gawrylewski's article in The Scientist (free registration required).  Excerpt:

...Adler told The Scientist that it's too early to say whether this mandate will prompt publisher lawsuits, but he "wouldn't rule out the possibility that publishers might seek judicial review." It depends on how the NIH chooses to implement this policy, he added, given that the general language of the mandate does not specify how it will be implemented in light of copyright laws.

Update. Also see the STM response to the NIH mandate, and my comments on it.