Open Access News

Susan Morrisey, Specter Speaks Up On Public Access, Chemical & Engineering News, February 25, 2008.

Just over a month after NIH announced its mandatory public access policy for research that it funds, some in Congress are questioning whether the agency did enough to gather input from journal publishers....

In a letter to NIH Director Elias A. Zerhouni, Sen. Arlen Specter (R-Pa.), ranking member of the appropriations subcommittee that oversees NIH's funding, questions whether the agency has acted in the spirit of the congressional directive with regard to talking to journal publishers....

"I am concerned that the NIH is not taking the appropriate steps to seek out and take into account the advice of journal editors," Specter writes. The mandatory public access policy notice put out by NIH in January, he explains, "did not outline a process for seeking the advice and comment of journal publishers, scientists, or any other interested parties."

Specter adds that the notice also did not provide details on "how the policy would be implemented in a manner consistent with copyright law." This has been an issue of concern to journal publishers, which include the American Chemical Society, the publisher of C&EN....

In response to Specter's concerns, Norka Ruiz Bravo, deputy director of extramural research at NIH, tells C&EN that NIH will be responding directly to Specter, but she would not elaborate on any details. She did point out that NIH has been talking with publishers throughout the development of the public access policy and that the agency plans on "continuing to take input as it rolls through with the implementation."

Comments

• This is about publisher lobbying that won't give up, not about the merits of the NIH policy or Congressional support for it.
• One piece of evidence is that, even if the NIH talks to publishers full-time for a year, the bill passed by Congress and signed by the President still says that "the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to...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" (emphasis added).
• Another is that Elsevier has a major presence in Pennsylvania, Specter's home state, and has often used the argument that a strong NIH policy would cost jobs in Pennsylvania.  Despite that argument, Specter (as ranking minority member of the Senate Appropriations Committee) supported the OA mandate at NIH.  His recent letter to Zerhouni looks like a way to stand by the policy and soothe an important constituent at the same time.  BTW, this has been Specter's position all along.  In a Congressional colloquy from October 2007, he said he "shared" the "concerns" of some critics who wanted to see a more thoroughgoing review.  But he still supported the mandate.  The concern for additional review is not new, not a turning a way from the NIH policy, and a studied part of his delicate balance of constituency interests.
• Another is that publishers raised the "insufficient hearing" objection as soon as the NIH announced its policy and have been pressing it ever since.  Chemistry World reported in January, for example, that "[t]he ACS now says that NIH may have acted unlawfully because the agency failed to consult publishers adequately beforehand - as required by the bill....Publishers have vowed to take their concerns to Congress and the White House, while the Association of American Publishers (AAP) is considering legal action."  (BTW, the bill does not say that the the agency must hold further consultations with publishers.)
• The consultations with publishers have been extensive; see my brief account or Heather Joseph's longer one.  Moreover, as Norka Ruiz Bravo has said, the NIH will continue to consult with publishers as it implements the new policy. 
• But this is key:  even if the objection lacks merit, there is a real lobbying campaign behind it that we cannot underestimate.  The lesson is:  don't panic but don't get complacent either.  Publishers have the money to lobby this indefinitely.  But Congressional leaders have heard their arguments and still support the NIH policy.  Moreover, friends of OA will continue to match the publishing lobby at every turn.  See for example the open letters (1, 2, 3) from eight library associations earlier this month urging policy-makers not to allow special interests to delay the implementation of the NIH policy.
• Finally, it appears that publishers will continue to raise the copyright objection in their consultations with the NIH and lobbying in Congress.  However, everyone should be clear that the NIH has implemented the policy in a way that fully answers the copyright objection.  If Sen. Specter is saying that the policy doesn't comply with copyright law or doesn't say how it will comply with copyright law, he's mistaken. But if he's only saying that he wants to see more details about that compliance, then details are easy to provide.  Here's how I fleshed them out in a SOAN article last month:

  Point #2 [of the policy] is explicit that copyright transfer agreements must conform to the policy, not the other way around.  If a publisher does not accommodate the NIH policy, and grantees cannot obtain special permission to comply with it, then they must look for another publisher. 

  The FAQ (question F1) explains that, while grantees may still hold copyright to their articles, they must now retain a key right and stop transferring full copyright to publishers.  Grantees "may assign these rights to journals (as is the current practice), subject to the limited right that must be retained by the funding recipient to post the works in accordance with the Policy..." (emphasis added).
  
  This strategy...makes crystal clear that the policy does not violate the publisher's copyright.  NIH-funded authors will retain the right to comply with the NIH policy, even if they transfer all other rights to a publisher.  When authors do comply with the policy and make a copy of their work publicly accessible through PubMed Central, publishers cannot complain that this infringes a right they possess, only that it would infringe a right they wished they possessed....

Update.  Also see the story in Library Journal Academic Newswire.