Open Access News

Matt Jones, Publishers Still Unhappy with Congress, NIH over Open Access Law, GenomeWeb Daily News, April 4, 2008.  Free registration required.  Excerpt:

...According to [a publishing] industry attorney, scientific publishers could seek a legal remedy later this year.

“[There] was simply no sound reason for Congress to subsequently allow an appropriations rider to take an inconsistent and more controversial route toward … enhancing public access to the results of scientific research,” Alan Adler, vice president of legal and government affairs for the American Association of Publishers, responded after the bill became law....

Under the Administrative Procedures Act of 1946, agencies are to follow an ordered process in implementing such new policies, including notifying the public, inviting written comments, considering comments, and publishing a final rule not less than 30 days before the policy takes effect, and publishing a statement explaining the purposes of the rule.

“Here the NIH has adopted a program of implement first and ask questions later,” Adler told GenomeWeb Daily News today.

The AAP has written to NIH Director Elias Zerhouni attempting to get the agency to follow that procedure, and earlier this week the NIH announced a request for information notice — a call for comments and recommendations that would give anyone who is concerned or confused about the law the chance to find out more about the details of the policy or to point out problems they have with it....

“We wanted NIH to propose how they’re were going to implement policy, then take public comments, and then to respond to those comments about what they were going to do about them,” Adler said, because that is the way the Administrative Procedures Act works.

This would have allowed the NIH, publishers, and investigators to air out all of their opinions before the policy was completely drafted for implementation....

[T]he current strategy of the publishers will be to follow through with the request for information and the process and see what happens.

After the August report, if the AAP is not happy that its concerns have been addressed, Adler said it was a possibility that this could go to court.

Peter Suber, who has been a longtime and vocal advocate for the open-access law, told GWDN yesterday that the language in the bill left a lot of details up to the agency.

“The NIH could change its policy in light of the comments,” said Suber, who is a professor at Earlham [College] in Indiana and a senior researcher with the Scholarly Publishing and Academic Resources Coalition, particularly in terms of “looking for ways to make it the least burdensome for authors and journals.”

But as for claims of copyright infringement that some publishers have made, he thinks there may be little chance [because the policy does not violate publisher copyrights].

“The publishers’ objections are to the whole idea,” Suber said. “I think they’ll try to suggest deep reforms all the way up to scrapping the whole thing....”

Comments

• “[There] was simply no sound reason for Congress to...allow an appropriations rider to take an inconsistent and more controversial route toward … enhancing public access to the results of scientific research....”  Here Adler is comparing the NIH policy to a weaker access policy Congress requested for a different agency (the NSF) in a different bill (the COMPETES Act).  But of course there was a sound reason for the change of course:  to improve upon the earlier access policy and require public access for publicly-funded research.  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 world's largest public investment in research; and to remedy the well-documented failure of the previous, weaker policy.
• The procedures the AAP recommends "would have allowed the NIH, publishers, and investigators to air out all of their opinions before the policy was completely drafted for implementation...."  Publishers have had many opportunities to comment on the NIH policy, before and after the current version was drafted, most recently in a comment period ending three weeks ago.  Either publishers will say something new in the current comment period (to end on May 1) or they won't.  If they do, then they can't complain that they didn't have the opportunity.  If they don't, then the current complaints about lack of opportunity are in bad faith.
• I'd like to see a little more balance in the news coverage of the NIH policy. One valid angle is:  The publishing lobby is unhappy with it.  But the rest of the story usually goes unreported:  Researchers, libraries, universities, physicians, patients, nonprofit patient-advocacy groups, taxpayer groups, and many individual publishers are happy with it.

Update (4/5/08).  Also see Stevan Harnad's comments:

When will research journal publishers realize that research is conducted by researchers and funded by the tax-paying public for the sake of what is best for research, researchers, their institutions, the vast R&D industry, and the tax-paying public? Research is not being conducted and funded as a service to the research journal publishing industry....

If and when it should ever come to pass that Green Open Access self-archiving mandates make subscriptions unsustainable, the obvious solution will be for journal publishers to convert to Gold Open Access publishing (which some publishers have done already). But AAP is pre-emptively lobbying (and now even threatening to sue!) to continue to restrict the very access for the sake of which research is being given to publishers to be published -- in order to protect their current cost-recovery model from the hypothetical risk of one day having to convert to Gold OA Publishing.

Though the analogy is a bit shrill, it is very much as if tobacco companies were lobbying against no-smoking ordinances because they might hurt their sales (even though they protect public health) -- except that in the case of the no-smoking mandates, there isn't even Gold waiting at the end of the rainbow!