Welcome to the SPARC Open Access Newsletter, issue #131
March 2, 2009
by Peter Suber

Read this issue online


SOAN is published and sponsored by the Scholarly Publishing and Academic Resources Coalition (SPARC).

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Re-introduction of the bill to kill the NIH policy

The Conyers bill is back (or baaaack).  This is the bill to repeal the OA policy at the NIH and block similar policies at all other federal agencies.  Its sponsors named it the Fair Copyright in Research Works Act, but the bill is to fair copyright what the Patriot Act was to patriotism.

Rep. John Conyers (D-MI) first introduced it late in the previous session of Congress, September 9, 2008, and it never came up for a vote.  But he re-introduced it early in the new session, February 3, 2009.  It has been referred to the House Judiciary Committee, where Conyers is Chairman.  The Judiciary Committee does not specialize in science, science policy, or science funding, but copyright.

The language of the new bill (HR 801) is the same as the language of the old bill (HR 6845), and the rhetoric of the publishing lobby in support of it is also the same.  Hence, these analyses from the first time around still apply:

The SPARC memorandum showing that the NIH policy does not affect US copyright law, July 2008

The open letter from 46 law professors objecting to "serious misstatements relating to copyright law" in the publisher arguments for the bill and against the NIH policy, September 8, 2008

The open letter from 33 US Nobel laureates in science defending the NIH policy against the Conyers bill, September 9, 2008

My own analysis of the bill and point-by-point rebuttal to the arguments of the publishing lobby, October 2, 2008

If the bill is the same, then what's new this time around?  Here are six ways in which the circumstances have changed since last September.

(1) Key leadership slots are now vacant.

Elias Zerhouni stepped down as the Director of the NIH in October 2008 and has not yet been replaced.  The Obama administration hasn't even named a nominee.  Zerhouni was a strong defender of the NIH policy who knew the publisher objections well and answered them forcefully.

The top spot at the US Department Health and Human Services (HHS), where the NIH resides, is also vacant.  President Obama had nominated Tom Daschle, a former Senator from South Dakota (1987-2005) and former Senate majority leader (2001-2003).  But Dashle withdrew his name early last month when the public learned that he didn't pay $140,000 in personal income tax until after Obama nominated him.

Two days ago, Obama nominated Kansas Governor Kathleen Sebelius to be the new Secretary of HHS. 

Like all the previous Secretaries of HHS, Sebelius would take office with no public track record for or against OA to research.  Like Obama himself, however, Sebelius is a strong supporter of open government.  In Kansas, she signed government transparency bills in 2007 and 2008.

The vacancy at the top of HHS will continue until she's confirmed by the Senate, which could be within a week.  We won't have a new Director of NIH until we have a new Secretary of HHS, and the campaign against the Conyers bill will be not be as strong or coordinated as it could be until we have both.  The agency and the department both support the OA policy, but are handicapped by the lack of Senate-confirmed leaders.  Even after both positions are filled, the new leaders will need to appoint staffers, come up to speed on pending issues and deferred work, learn where the paperclips are located, and start addressing an overload of urgent national priorities, before they can give any attention to the NIH policy and Conyers bill.

Clearly Conyers and the publishing lobby know this.  The leadership vacuum works in their favor and Conyers re-introduced his bill the day Dashle withdrew his name.

If the bill passes, you can blame the special interest lobby led by the Association of American Publishers, the DC Principles Coalition, and the Copyright Alliance.  But if the vote is close and it comes before Sebelius is confirmed or while she's still getting her sea legs, then you can also blame Tom Daschle for dodging his income taxes and the Obama team for failing to catch it or take it seriously before nominating him. 

(2) There has now been a hearing on the bill.

The Subcommittee on Courts, the Internet, and Intellectual Property, a subcommittee of Conyers' fiefdom, the House Judiciary Committee, held a hearing on the bill shortly after it was first introduced, September 11, 2008.

After the hearing it became clear that many members of the Judiciary Committee had been operating on false assumptions about academic publishing and the NIH policy.  The hearing itself corrected many of these and to that extent helped or should have helped the NIH policy.  For example, some members didn't realize that journals don't pay authors or peer reviewers for their work.  Others didn't know that the NIH paid about $100 million per year directly to journals to support their publishing costs, or about 30 times more than the cost of implementing the public access policy.  Others didn't appreciate just how many other countries have already adopted OA mandates, some stronger than the NIH policy, and that none of these policies has run afoul of international IP treaties like the Berne Convention or TRIPS.  Others didn't realize that the permissible embargo under the NIH policy (12 months) was twice as long as the embargoes allowed by OA policies at other medical research funders around the world (which all cap their embargoes at six months).  Others assumed that the NIH policy harmed publishers, but found that publishers were unable to point to any evidence of harm.

However, Conyers re-introduced his bill without modifications, as if the September hearing had produced no reasons to revise or drop it.  Even if he were rushing to take advantage of the leadership vacuum at NIH and HHS, he had six months to modify the bill after the hearing and before he re-introduced it. 

Clearly Conyers still wants to overturn the NIH policy.  But Mike Carroll, a law professor at American University, pointed out last year that the bill is far from surgical and would also repeal large chunks of federal procurement law that have nothing to do with research or publishing.  Conyers didn't revise the bill to steer clear of those problems either.  The September hearing focused on the intended damage, to the NIH OA policy, but the Judiciary Committee still has not heard from any other federal agencies on the collateral damage to their procurement policies.

See Mike Carroll on the bill's consequences for federal procurement law,

Conyers continues to complain that his committee, the House Judiciary Committee, should have vetted the 2007 bill directing the NIH to strengthen its OA policy.  Instead, the bill was controlled by the House Appropriations Committee and never run by Conyers' committee.  (It's relevant that the House Rules Committee and William Patry, former counsel to the House Judiciary Committee, have both said that the NIH policy raised no copyright issues and didn't have to be run by the Judiciary Committee.)  Conyers seems more irked by the jurisdictional slight than by the NIH policy.  More importantly, he's still fighting the turf battle, two years after the NIH bill was first floated and half a year after mooting the no-consultation question by arranging the September hearing. 

By continuing to press the point, he's putting the turf war ahead of the public interest in good policy.  Moreover, by introducing an unmodified bill, he's saying that he really didn't need to hear from the parties after all. 

In November Conyers consolidated his power by abolishing the subcommittee which held the September hearing. 

He might have wanted to block Rick Boucher (D-VA), a supporter of copyright balance, from becoming the new chairman of the subcommittee.  He might have wanted to bring all the copyright issues formerly heard by the subcommittee before the plenary committee where he himself is chairman.  He might have wanted to dilute the voices of the subcommittee members who learned new respect for the NIH policy from the September hearing.

(3) Barack Obama is now President.

This time around, the executive branch is led by Barack Obama, whose commitment to open government is not just campaign rhetoric.  On his first full day of office, he took three major steps to open the federal government:

He issued an executive order reversing the Bush directive allowing former presidents to block the public release of their presidential papers.

He issued a memorandum on the Freedom of Information Act, adopting "a presumption in favor of disclosure" and reversing the presumption used by the Bush administration.

He issued a directive on Transparency and Open Government, asking all "appropriate executive departments and agencies" to develop open government recommendations within 120 days, after which the Office of Management and Budget will turn them into a binding Open Government Directive. 

These were campaign promises.  But the Obama team is showing its commitment in many smaller ways as well.  For example, WhiteHouse.gov uses CC-BY licenses for third-party content.  (First-party or government-produced content is in the public domain.)  Even Google Earth is now allowed to show a satellite view of the vice presidential residence, a disclosure previously nixed by Dick Cheney.

The Obama commitment to openness should help us, but it's too early to say whether it will.

A commitment to transparency and open government doesn't translate directly into a commitment to open access.  It did for John Cornyn and Joe Lieberman, for example, who support OA for publicly-funded research largely on the basis of a background commitment to open government.  Nevertheless, it's possible to combine support for open government with support for copyright maximalism and the content industry.  For example, Bill Clinton supported open government, but in 1998 he signed both the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act. 

Democratic presidents may be predisposed to support open government and consumer rights, but they tend come to office owing a large debt to Hollywood and the entertainment industry.  Barack Obama may support open government even more than Bill Clinton, but he too owes a debt to entertainment goliaths and is repaying it by staffing important jobs in the Justice Department with industry soldiers in the war against file sharing.

For example, Obama's deputy attorney general, the second in command at the Department of Justice, is David Ogden, who successfully defended the Bono Copyright Term Extension Act (against Lawrence Lessig) in Eldred v. Ashcroft.  Obama's associate attorney general, or third in command at DOJ, is Tom Perrelli, who recruited RIAA as a client at Jenner and Block, and represented it in MGM v. Grokster.  Don Verrilli, another Jenner and Block partner who represented the RIAA, is an associate deputy attorney general.  Neil MacBride is the former general counsel to the Business Software Alliance in charge of anti-piracy enforcement, and now another associate deputy attorney general, advising the DOJ on the prosecution of copyright cases.  David Kris is a former VP at Time Warner and now the assistant attorney general in charge of the DOJ National Security Division.  And don't forget that Obama's VP, Joe Biden, is a strong supporter of the RIAA.

For more detail on Obama's copyright policy appointees, see these reports by Declan McCullagh and Alan Wexelblat.

Last month Obama's US Patent and Trademark Office (USPTO) took a group of US officials to Geneva for a series of meetings on strengthening IP law and enforcement.  Among those invited were Christal Sheppard, legislative counsel for Rep. John Conyers.  Offsetting the deference to Conyers somewhat was the presence of Erik Stallman, legislative counsel for Rep. Zoe Lofgren, a proponent of copyright balance.

For details on the USPTO delegation to Geneva, see William New's report for IP Watch.

But just as a commitment to open government doesn't entail a commitment to OA, neither does copyright maximalism for entertainment entail copyright maximalism, or even opposition to OA, for science and scholarship.  As I put it in SOAN last November,

[The trick is to] see how scientific research differs from music, movies, and novels.  Science thrives when we lift restrictions on access and use, and suffers when we tighten them, the opposite of royalty-driven intellectual property.  Scholarly journals don't pay authors, who can therefore consent to OA without losing revenue.  Universities pay scholars in part to free them from the market and free them to publish what they find to be true and important, even if only handful of people in the whole world care to read it or are in a position to understand it.  Universities reward scholars for their research publications, creating incentives to publish [which are] entirely unrelated to the market value of their publications. 

Research articles differ sharply from other categories of copyrighted content, [1] where authors are paid by publishers, [2] where author rewards are proportional to sales, [3] where the temporary monopoly of copyright is an essential incentive for author creativity, and [4] where the publisher's interest in limiting circulation to paying customers also serves the author's interest.

To advance the interests of the larger copyright industry as if academic publishing were just like music, movies, and novels would have the perverse effect of locking up knowledge, reducing its impact, and slowing research.  OA, by contrast, accelerates research and amplifies its impact, not only for researchers but for the entire economy. 

In short, copyright maximalism for entertainment needn't rule out OA for research.  But is there evidence that the Obama team sees it that way and plans to pursue both?  Yes. 

Obama has made as many OA-friendly appointments in science policy as OA-unfriendly appointments in copyright policy.  The most important is Harold Varmus, who is now co-chair of the President's Council of Advisors on Science and Technology (PCAST).  Varmus is the co-founder of the Public Library of Science and a crusading supporter of OA.  Of course he's also a Nobel laureate (physiology or medicine, 1989), former director of the U.S. National Institutes of Health (1993-1999), and currently President of Memorial Sloan-Kettering Cancer Center.

The other co-chair of PCAST is Eric Lander, who has a strong track record in support of OA as a lead researcher in the Human Genome Project and the founding director of the Broad Institute.  Obama's Secretary of Energy is Steven Chu, a Nobel laureate (physics, 1997) with 11 OA papers in arXiv and 14 in PubMed Central.  Obama's nominee to head the National Oceanic and Atmospheric Administration (NOAA) is Jane Lubchenco, who defended OA in a 2003 article.  His nominee to be Solicitor General is Elena Kagan, the Dean of Harvard Law School and a supporter of its May 2008 OA mandate.

But here's what worries me.  Even though the NIH policy does not violate copyright, the publishing lobby has decided to push the line that it does.  Some members of the Judiciary Committee have decided to play along and use copyright as a pretext to review the NIH policy, even though their proposal to amend copyright law presupposes that the NIH policy is in fact consistent with current law.  If the question were left to the science policy appointees in the executive branch, the bill would die and the NIH policy would live.  But the question will be decided first by a copyright-oriented committee in the legislative branch, which shows little sign of wishing to protect or promote science while it makes the world safe for entertainment.  Obama's copyright policy appointees in the executive branch may not see or may not care that the NIH policy is already lawful and that the fate of science needn't be tied to the fate of entertainment.

Obama could block the bill by refusing to sign it.  But if the question arose in that form, he might receive conflicting advice from his own appointees.  Moreover, the question may not arise in that form.  The language of the Conyers bill might be inserted into a must-pass bill, denying him the chance to give science and entertainment what he believes each is due. 

Because the NIH policy is entirely consistent with copyright law, it needn't alarm Obama's copyright policy appointees.  But we could have said the same thing about the Judiciary Committee.  Obama's copyright policy appointees may oppose the NIH policy for the same reasons that some members of the Judiciary Committee do:  because they are predisposed to favor content publishers or because their knowledge of the NIH policy is limited to what the publishing lobby has told them.  The dual risk of bias and misunderstanding is real.  As some members of the Judiciary Committee are already proving, copyright expertise is not enough if one hasn't troubled oneself to understand the NIH policy, its rationale and benefits, its concessions to publishers, and its simple, elegant, and battle-tested method for avoiding infringement.

Much of my argument here presupposes that the NIH policy does not, in fact, violate copyright law.  I made that case at length when the Conyers bill was first introduced, and the only reason I don't recap it here is to minimize duplication.  If you have any doubts, please read my earlier analysis.

(4) The US, and the world, are now in profound economic collapse. 

The economic crisis changes the landscape for the Conyers bill because it strengthens the case for OA, especially OA for publicly-funded research. 

Both the NSF and NIH received extra funds --$3 billion and $10.4 billion respectively-- under the economic stimulus package President Obama signed on February 17.  While the new funds will support precious new research, the economic crisis heightens our responsibility to maximize the *return* on that investment as well.  That's where OA comes in.  It maximizes the return on our research investment by maximizing the reach and usefulness of research.  Moreover, as John Houghton's many studies have shown, OA is itself a profound economic stimulus, within and well beyond the research sector itself.

Conducting more research is only one way to amplify the benefits of research.  The other way, even more affordable than the first and even more compelling in hard times, is to ensure that the research we do conduct reaches all who could make use of it. 

If you're reading this, you're probably very familiar with the background reasons to support OA for publicly-funded research, in good times or bad.  But there are also special reasons to push harder in hard times.  These special reasons to beyond the responsibility to maximize the return on our investment and beyond the economic activity OA stimulates.  As library budgets shrink, toll access is harder to afford, even if prices remain steady.  If it weren't for OA, access to research would decline apace.  Throw in rising journal prices and we face damaging access cuts even greater than the damaging budget cuts.  Loss of access harms researchers first, but it also harms all of us who depend on research --for everything from better batteries, monitors, and processors to health care, green energy, and public safety.

In short, the Conyers bill does more harm the deeper we slide into recession.  Members of Congress serious about science and serious about economic recovery --admittedly not the full membership-- will take that into account. 

The message from voters to the Judiciary Committee should be:  In any other year we could quarrel about whether to make government science agencies serve publishers before they serve the public.  But this year think about the economy.  This is not the year to make US taxpayers pay a second fee for access to the research they've already funded.  This is not the year to make publicly-funded research less accessible and less useful.  This is not the year to slow down medical research, reduce the benefits of research, and reduce the economic activity stimulated by research. 

For other ways to make the argument that we need OA as an economic stimulus, on top of the background arguments for OA, see:

My own Open letter to the next President of the United States, SOAN, November 2, 2008.

Charles Lowry and Prue Adler, Establish a Universal, Open Library or Digital Data Commons, ARL, January 2009.

Michael Geist, Fire Up the Digital Jobs Machine, The Tyee, January 20, 2009.

Open Access Working Group, Public Access to the Published Results of Publicly Funded Research Will Benefit the Economy, Science, and Health, February 2009.

Charles Lowry, Let's Spur Recovery by Investing in Information, Chronicle of Higher Education, February 6, 2009

John Houghton's largest and latest study of the economic impact of OA, with eight co-authors, is Economic implications of alternative scholarly publishing models:  Exploring the costs and benefits, JISC, January 2009.

Houghton's many earlier studies on the economic impact of OA

(5) In the period between the introduction of last year's bill and this year's, at least 10 funding agencies around the world adopted OA mandates, more than one per month.

On the same day as the September hearing on the original bill, the Wellcome Trust and the DBT India alliance launched a joint biomedical research program operating under an OA mandate.  Later that month, both the MacArthur Foundation and the Moore Foundation adopted OA mandates.  In October, the Fonds de la recherche en santé du Québec adopted an OA mandate.  (In the same month, btw, the European Commissioner for Science and Research, Janez Potocnik, told the Director of SURF, Wim Liebrand, that the EC "will encourage *all* recipients of EU subsidies to make published scientific/scholarly articles available to the public".)  In November, both Autism Speaks and the Norwegian Knowledge Centre for the Health Services adopted OA mandates.  In December, the UK Engineering & Physical Sciences Research Council adopted an OA mandate, making it the seventh out of the seven Research Councils UK to do so.  In February, the Norwegian Research Council and the Spanish principality of Asturias adopted OA mandates, and the OA mandate at the Science Foundation Ireland took effect.  Also in February, the Irish Research Council for Humanities and Social Sciences revealed that it is considering an OA mandate, India's Council of Scientific & Industrial Research asked each of its 40+ laboratories adopt an OA mandate, and Spain's Ministry of Science and Innovation proposed legislation containing an OA mandate for publicly-funded research.

Two OA mandates adopted before the Conyers hearing were only revealed after the hearing:  one at Germany's Fraunhofer-Gesellschaft and one at National Cancer Institute of Canada (now part of the Canadian Cancer Society). 

Universities followed the same path for the same reasons.  Since the Conyers hearing, OA mandates were adopted at Switzerland's ETH Zürich, the University of Glasgow, and Napier University (now called Edinburgh Napier University).  The OA mandate at the University of Liege moved out of its experimental phase, Boston University and the University of St. Gallen adopted university-wide OA policies, and Texas A&M is now considering one.  Temple University adopted an OA mandate for doctoral dissertations. 

Clearly, the US doesn't have to follow the trail blazed by the rest of the world.  However, if the NIH had adopted an OA mandate in July 2004, when the House Appropriations Committee first asked for one, it would have been the world's first funding agency, public or private, to do so.  When it finally adopted the mandatory version of its policy in January 2008, it was 21st. 

Because the NIH is the world's largest funder of non-classified research, the publishing lobby has tactical reasons to focus on it even while the rest of the world makes the transition to OA.  But policy-makers should notice that the worldwide default is shifting.  Deference to special interests only puts the US behind:  behind the progress of its peers and trading partners, and even more importantly, behind its own self-interest in seizing the opportunities of the internet to lower costs and widen distribution at the same time.  Members of Congress must ask themselves a stark question:  Is US-funded research less worth wide dissemination than research funded elsewhere? 

(6) The clock is still ticking. 

Finally, it's been more than half a year since Coyers first introduced his bill, and during that time the NIH has continued to apply its OA policy and continued to build its compliance rate.  I argued in December that this fact alone changes the politics of the policy.  The longer the policy is in force, the more researchers and patients benefit from it, the more publishers accommodate it, and the more Congress and the public accept it as the norm for publicly-funded research in the age of the internet.  Most publishers have already accommodated it, a fact which the publishing lobby would like us to forget.  Many publishers have gone much further, allowing deposit of the published edition in PubMed Central (as opposed to the final version of the author's peer-reviewed manuscript), allowing deposit of all their articles (as opposed to those based on NIH-funded research), or allowing OA earlier than the permitted 12 month embargo.  Publishers who hate the idea of accommodating it face the ticking clock, not just the many supporters of OA.  They may have the money to lobby against the NIH policy every year, forever, but the question is becoming moot as the policy becomes the new normal and even its opponents revise their internal policies to live with it.

This explains the desperation of the publishing lobby.  It may even predict that opposition will grow in ferocity before it subsides.  But it also predicts that it will subside, at least if we can hold on and protect the NIH policy until the new normal grows deeper roots.


After analyzing the bill in the October 2008 SOAN, I listed eight facts I wanted members of Congress to understand if they ever had to cast a vote on the bill.  Here are the eight once more, slightly restated. 

(1) The NIH policy does not infringe copyrights.  OA through PubMed Central under the NIH policy is expressly authorized by the copyright holders, namely, by the authors before they transfer rights to publishers.

(2) The policy does not violate our IP treaties.  The treaties would only come into play if Congress had amended the Copyright Act in order to enact the NIH policy, which it did not do.  The NIH policy doesn't change US law, only the contract between the agency and its grantees.  (It is the Conyers bill, ironically, which would amend the Copyright Act.)

(3) The policy regulates grantees, not publishers.  It doesn't require publishers to provide OA, to permit OA, to relinquish anything they possess, to relinquish anything they acquire, or to take any step they are unwilling to take.  It merely requires grantees to ask certain terms from publishers.

(4) There is no surrender, commandeering, or expropriation of publisher property here.  There's a business proposition which publishers remain free to take or leave.  The only taking here is that essentially all publishers are taking the offer from NIH-funded authors.

(5) NIH-funded authors who comply with the new policy do not transfer full copyright to publishers.  Instead, they retain a non-exclusive right to authorize OA through PMC.  Consequently, publishers do not acquire full copyright in articles arising from NIH-funded research.  At most, they acquire all but the right the author has retained.  Publisher arguments that refer, without qualification, to "their copyrighted articles" are already sloppy and deceptive.

(6) Publishers who raise copyright objections to the policy fail to distinguish between (a) acquiring fewer rights from authors than they would like and (b) diminishing protection for the rights they do acquire.  If they have a grievance, it's the former, not the latter.  However, if one of these is inconsistent with copyright law, it's the latter, not the former. 

(7) The NIH "mandate" is a mandatory condition in a voluntary funding contract, exactly as consistent with copyright law as the mandatory conditions in voluntary publishing contracts.

(8) The mission of the NIH is to advance the public interest in medical research and health care, not the private interest of the publishing industry.  Becauses the Judiciary Committee can set policy, its mission is not as clear-cut.  But insofar as the committee bears the responsibility to set policy on copyright, shouldn't its mission be less about creating artificial scarcity to publicly-funded research than promoting the progress of science and useful arts?


* It's urgent for US citizens to contact their representatives.  It doesn't matter whether your representative sits on the Judiciary Committee.  If the bill ever leaves the committee, the full House of Representatives will vote on it and must be aware of the damage it would cause. 

The message is two-fold:  support for the NIH policy and opposition to the Conyers bill (or HR 801, Fair Copyright in Research Works Act).  Because the language repealing the NIH policy may appear in a different bill, urge your representative to oppose HR 801 and any similar measure to overturn the NIH policy.  Your message will be more persuasive if you can explain why the NIH policy matters to you, your work, or your organization.  Be specific and be personal.  Speak for yourself, but if you can, get your institution to send a letter as well. 

If you have extra time, send the same message to every member of the House Judiciary Committee.

At the moment, the bill has only been introduced in the House, not the Senate.  But keep a copy of your message in case you have to send it to your Senators later.

Finally, spread the word.  Get your colleagues to write to their representatives as well.

House Judiciary Committee

Members of the House Judiciary Committee

Contact info on each member of the Judiciary Committee (thanks to Charles Bailey)

Contact info on any member of Congress

* Here's the bill itself

H.R. 801, The Fair Copyright in Research Works Act, in THOMAS

...in OpenCongress

...in Washington Watch

The hearing on last year's version of the the bill conducted by the House Judiciary Committee, Subcommittee on Courts, the Internet, and Intellectual Property, September 11, 2008

The video webcast of the hearing

* Here is some of the news and comment on the re-introduction of the bill (in chronological order).

Conyers Fights NIH Internet Mandate, Tech Daily Dose, February 4, 2009.

Andrew Albanese, Bill Banning NIH-Like Public Access is Reintroduced in Congress, Library Journal, February 4, 2009.

Andrew Albanese, Copyright Research Bill ReIntroduced, Publishers Weekly, February 4, 2009.

Peter Suber, The Conyers bill is back, Open Access News, February 4, 2009.

Mike Carroll, Renewed Attack on Open Access in Congress, Carrollogos, February 4, 2009.

The Copyright Alliance released a statement supporting the Conyers bill, February 4, 2009.

The Association of American Publishers released a statement supporting the Conyers bill, February 4, 2009.

Andrew Albanese, New Wrinkles as Bill Banning NIH-Like Public Access Resurfaces, Library Journal, February 5, 2009.

Elie Dolgin, Anti-open access bill is back, The Scientist, February 5, 2009.

Gigi Sohn, Anti-Open Access Bill a Real Head-Scratcher, Public Knowledge, February 5, 2009.

Matt Jones, Bill Against NIH Open-Access Policy Back in House, Genome Web Daily News, February 05, 2009

Molly Kleinman, The “Fair Copyright in Research Works” Act rears its ugly head again, Molly Kleinman, February 5, 2009.

John Timmer, Congress may slam door on NIH research open access policy, Ars Technica, February 6, 2009.

David Bruggeman, Bill Introduced to Roll Back NIH Open Access, Prometheus, February 6th, 2009.

Lila Guterman, Proposed Law Would Make NIH Less "Open", Science Magazine, February 6, 2009.

Michael Eisen, Conyers reintroduces bill to kill NIH Public Access Policy, It is NOT Junk, February 6, 2009.

NIH research open access policy threatened, TPM Café, February 7, 2009.

Jennifer Howard, At Publishers' Conference, the Digital Future Is (Almost) Now, Chronicle of Higher Education, February 9, 2009.

Elie Dolgin, Heather Joseph: Q&A, The Scientist, February 9, 2009.

Greg Laden, Open Access Under Threat, Greg Laden's Blog, February 9, 2009.

Stevan Harnad, Protect the NIH Public Access Mandate From the Conyers Copyright Caricature, Open Access Archivangelism, February 9, 2009.

Open letter to Rep. John Conyers and the House Judiciary Committee, from the Alliance for Taxpayer Access, February 10, 2009.

Tracking a Bill: H.R.801, Repealing Open Access to NIH-funded Science, Congress Matters, February 10, 2009.

The Alliance for Taxpayer Access issued a call to action to defend the NIH policy against the Conyers bill.

Open letter to the House Judiciary Committee from 10 library associations, scientific publishers, public interest groups, February 13, 2009.  (The 10 groups are AALL, ALA, ASCB, ACRL, ARL, GWLA, PK, PLoS, SPARC, and SLA.)

Open letter to Rep. John Conyers and the House Judiciary Committee, NetCoalition, February 13, 2009.

NYSHEI Opposes the “Fair Copyright in Research Works” Act, New York State Higher Education Initiative, February 13, 2009.

Charles Bailey, Urgent Call to Action: Conyers Bill Opposing NIH Open Access Policy May Soon Come to House Vote, DigitalKoans, February 13, 2009.
--Also see Charles' follow-up on February 15, 2009.

Corey Williams, Conyers Introduces H.R. 801, “The Fair Copyright in Research Works Act”, District Dispatch, February 13, 2009.

Katie Newman, NIH Public Access Policy in Jeopardy, BioBlog, February 13, 2009.

New Bill Would Repeal NIH Open Access Policy, a discussion thread at Slashdot, February 14, 2009.

Charles Bailey, Urgent Call to Action: Conyers Bill Opposing NIH Open Access Policy May Soon Come to House Vote, DigitalKoans, February 14, 2009.

xgy2, Conyers to end NIH open access, Daily Kos, February 14, 2009.

John Hawks, Congress to repeal open access science provisions? John Hawks weblog, February 14, 2009.

Fernando Pereira, The Conyers bill is back, Earning My Turns, February 15, 2009.

Peter Murray, H.R.801 Threatens Open Access Requirement for Gov’t Funded Research, Disruptive Library Technology Jester, February 15, 2009.

Nathan Georgette, Stand for Open Access, Oppose HR801, Open Access Blog, February 16, 2009.

Steve Lindholm, Scientific publishers get a law introduced to end free publication of govt-funded research, Boing Boing, February 16, 2009.

John Baez, Banning Open Access, The n-Category Café, February 16, 2009.

The Bubble In Academic Research, The Last Psychiatrist, February 17, 2009.

David Weinberger, Open Access: Half step forward, big possible step back, Everything is Miscellaneous, February 17, 2009.

Andrew Albanese, In New Letter, Library Associations Voice Strong Opposition to Anti-NIH Bill, Library Journal, February 17, 2009.

Nathan Georgette, Following the money on HR801, Open Access Blog, February 18, 2009.

Open Access and the NIH, Oxadox, undated but c. February 18, 2009.

T. Scott Plutchak, What I Said About Public Access at the ER&L Conference, T. Scott, February 18, 2009.

The American Library Association created an action alert to help Americans contact their representative to support the NIH policy and oppose the Conyers bill (if the representative is a member of the House Judiciary Committee), February 19, 2009.

Open letter to the House Judiciary Committee, supporting the NIH policy and opposing the Conyers bill, from the Association of American Universities (AAU) and the National Association of State Universities and Land-Grant Colleges (NASULGC), February 19, 2009.

Nathan Georgette, Why is HR801 referred to the Judiciary Committee, when there's a perfectly good one on Science and Technology?  Open Access Blog, February 19, 2009.

Proposed legislation would be blow to public access, a public statement from the Association of Health Care Journalists, February 19, 2009.

Open-access supporters oppose US bill, Research Information, February 19, 2009.

House Rehashes Bill Blocking Access to Publicly Funded Research, American Libraries, February 23, 2009.

Library Associations Oppose Repealing Public Access Bill, Urge Action, American Library Association (in Information Today), February 23, 2009.

James Boyle, Misunderestimating open science, Financial Times, February 24, 2009.

Richard Esguerra, "Open Access" Policies Threatened by Copyright Bill, Electronic Frontier Foundation, February 25, 2009.

Esther Wojcicki, Bill Before Congress May Close Medical Research to Average American, Huffington Post, February 25, 2009.

Key Points: How the Fair Copyright in Research Works Act Protects Copyright and Advances Science and Scientific Publishing, from the Processional Scholarly Publishing division of the Association of American Publishers, February 26, 2009.

Kevin Donovan, No Taxation Without Information, The Hoya (the student newspaper at Georgetown University), February 26, 2009.

Rep. Anna Eshoo (D-CA) supports the NIH policy, and says so boldly in reply to constituents who ask her to do so.

Stefan Krempl, US-Gesetzesentwurf will staatliche Open-Access-Publikationen streichen, Heise online, February 27, 2009.

* At Open Access News, I posted several collections of comments from the press and blogosphere on the re-introduction of the Conyers bill.



Here's what happened, or what I noticed, since the last issue of the newsletter, emphasizing action and policy over scholarship and opinion.  I put the most important items first, with double asterisks, and otherwise cluster them loosely by topic.  Most of the time I link to blog posts at Open Access News (where I am now assisted by Gavin Baker), not to the sources themselves, because I only want to use one link per item and the blog posts usually bring many relevant links together.

** The Fonds de la recherche en santé du Québec (FRSQ) adopted an OA mandate.

** The Norwegian Research Council adopted an OA mandate.

** The Spanish principality of Asturias adopted an OA mandate.

** The OA mandate at Science Foundation Ireland took effect on February 1.

** Boston University launched an IR and adopted a university-wide policy to support OA "in routine operations" of the university.  Among other things, the policy encourages faculty not to transfer exclusive rights to publishers and to submit their work to OA journals. 

** Switzerland's University of St. Gallen adopted an OA policy to "ensure" OA for as many faculty articles as possible.

** The Wales Higher Education Libraries Forum (WHELF) launched the Welsh Repository Network, a project to put an IR in each Welsh university.

** Rep. John Conyers (D-MI) re-introduced the Fair Copyright in Research Works Act in the US House of Representatives.  The bill would overturn the NIH policy and prevent all federal agencies from adopting similar policies.

* India's Council of Scientific & Industrial Research (CSIR) recommended that each of its 40+ laboratories adopt an OA mandate.

* Spain's Ministry of Science and Innovation proposed a draft law of science and technology which includes an OA mandate for publicly-funded research.

* The Yemen parliament is considering a bill to enhance citizen access to information, including access to research.  The bill requires research institutions to do something or another with their research, but the only source I can find so far is in opaque English.

* The Irish Research Council for Humanities and Social Sciences is considering an OA mandate.

* Trinity University formed a working group to consider adopting an OA mandate.

* Texas A&M University is considering an OA policy.

* The University of Tennessee launched an OA journal fund.

* Old news I just learned:  Tilburg University launched an Open Access Publishing Fund last summer as a one-year experiment, set to expire at the end of August 2009.  Delft University of Technology launched a fund in April 2008 and the Wageningen University and Research Center launched a fund in 2006.

* The Association of American Universities, Association of Research Libraries, Coalition for Networked Information, and National Association of State Universities and Land Grant Colleges released a joint statement on The University’s Role in the Dissemination of Research and Scholarship.  The statement calls for OA and the "broadest possible access" to research.

* The Association of Research Libraries released the ARL Statement to Scholarly Publishers on the Global Economic Crisis.  The statement says that academic libraries "are increasingly receptive to models that provide open access" to works by authors on their campuses and that OA models of that kind "can form a bridge from subscription models to models incorporating author-side payments."

* The OA Working Group of the Norwegian Association of Higher Education Institutions issued a report recommending green OA for all publicly-funded Norwegian research, with deposit in institutional repositories at the time of acceptance for publication.  The report was requested by Norway's Ministry of Education.

* The directors of major US law libraries released the Durham Statement on Open Access to Legal Scholarship.

* The Council of Editors of Learned Journals is articulating principles for the future of scholarly journals.  The second principle calls for the removal of price barriers.

* Ruth Copans, the College Librarian at Skidmore College, would like to see an OA mandate at Skidmore.

* In a new article, Jonathan Gray called for an OA mandate for publicly-funded research in Germany.

* In a new article, Jean-Claude Guédon issued another call for an EU-wide OA mandate.

* Obama's first nominee to be Secretary of Health and Human Services (the department home of the NIH), former Senator Tom Daschle, withdrew his name after he was found to be delinquent in his taxes.

* President Obama nominated Kathleen Sebelius to be Secretary of Health and Human Services.  Sebelius is the Democratic governor of Kansas.

* Carl Malamud of Public.Resource.Org launched a campaign to be named Obama's Public Printer of the United States.

* The proposal to require OA for publicly-funded research climbed from #12 to #11 on Obama CTO, the unofficial web site collecting recommendations for the Obama administration.

* Another proposal to require OA for publicly-funded research is ranked #13 at the Open Our Government List, a service from the Sunlight Foundation "to add a public element" to the Obama administration's Open Government Directive.

* Manuel Medina Ortega, a Member of the European Parliament from Spain, wrote a draft report for the Parliament.  The Medina report, adopted by the Committee for Legal Affairs, "takes particular note of the value of learned journals,...the financial viability of which is dependent on paid subscriptions."

* The Medina report was withdrawn by Medina's own allies, fearing backlash.

* Open Access Journal of Medicinal and Aromatic Plants is a forthcoming peer-reviewed OA journal published by the Medicinal and Aromatic Plants Association of India.

* Carnets is a new peer-reviewed OA journal published by the Associação Portuguesa de Estudos Franceses.

* Primary Prevention Insights is a new peer-reviewed OA journal published by Libertas Academica.

* The Göttingen Journal of International Law is a new peer-reviewed, student-edited OA journal published in English by the University of Göttingen.

* e-Century Publishing launched two new peer-reviewed OA journals:  the American Journal of Translational Research, and the International Journal of Physiology, Pathophysiology and Pharmacology.

* The Econometric Society announced plans to launch a new OA journal, Quantitative Economics, and to adopt another, the OA journal Theoretical Economics, currently published by the Society for Economic Theory.

* Medknow announced three forthcoming OA journals:  The Journal of Craniovertebral Junction and Spine, the Journal of Education and Ethics in Dentistry, and the Middle East African Journal of Ophthalmology.

* Five journals joined Revues.org last month, either for immediate or delayed OA:  Bulletin d’Études Orientales, Cahiers d’Asie Centrale, La Révolution française, Revue de recherche en civilisation américaine, and Revue de Primatologie .

* Two research yearbooks have converted to OA and moved to Revues.org:  Annuaire de l'École pratique des hautes études, section des sciences historiques et philologiques, and Annuaire de l'École pratique des hautes études, section des sciences religieuses.

* Revista Electrónica de Veterinaria converted to OA and started using a CC-BY license.

* Reason Papers is converting to OA, starting retroactively with the Fall 2007 issue.

* The Journal of Clinical Investigation converted from OA to TA, starting with the January 2009 issue.

* The Association for the Advancement of Artificial Intelligence is converting the technical content in its its digital library to OA.

* The Revue française de psychanalyse made 73 years of its backfile (1927-2000) OA on Gallica2. More recent issues are available on Cairn, OA after a 5 year embargo.

* Several scholars are holding an open online discussion on whether to launch an OA journal of computational geometry.

* BMJ announced three new policies for its BMJ Unlocked hybrid OA program:  no commercial use, permission to self-archive in any repository, and automatic BMJ deposit in PubMed Central immediately upon publication.

* Harold Varmus, one of the co-founders of PLoS, told an audience at Columbia University that PLoS would be "fiscally self-sustaining" by 2010.

* Two US universities (Oregon State and Tulane) and a consortium of 11 others (the Florida Center for Library Automation) joined the CERN SCOAP3 project.

* The University of Bath launched Opus, its institutional repository.

* The University of Texas at Dallas launched an IR, Treasures @ UT Dallas, as part of the consortial Texas Digital Library.

* The Facultad de Filosofía y Letras, the humanities school within the Universidad Nacional Autónoma de México, launched an institutional repository.

* India's Sree Narayana Gurukulam College of Engineering launched an institutional repository.

* The US National Association of Government Archives and Records Administrators (NAGARA) has launched NAGARA Resources, an OA repository for documents about archives.

* Nereus launched Economists Online, a new OA portal for economics research.

* ICPCNanoNet is a new OA repository for nanoscience research.

* The OA Perseus Digital Library is developing a digital library distributed among institutional repositories.  The Scaife Digital Library is named after Ross Scaife, a classicist and OA proponent who died in 2008.

* The Twidox repository moved into its public beta.

* PhilPapers, a new OA repository for the field of philosophy, from David Chalmers and David Bourget, entered its public beta.

* The Federal Digital System, or FDsys, of the US Government Printing Office entered its public beta.  FDsys will take the place of GPOAccess as the OA repository for US federal government information.

* Funding for the UK Depot is due to expire on September 30, 2009.  The Depot is collecting public comments on whether it should try to continue "or else when and how to close".

* The Mellon Foundation Program in Research in Information Technology released its report on DuraSpace, the "cloud" repository project from the DSpace Foundation and Fedora Commons.

* Gerry Lawson of the Natural Environment Research Council reported that the Research Councils UK are considering ways to collect final reporting information from grantees' institutional repositories.

* The NIH officially released its response to the public comments on its OA policy received in April and May 2008.  It released an unofficial version in September 2008.  Among other things, the NIH says that it's "open to closer collaboration with institutional repositories".

* The new OCLC Review Board of Shared Data Creation and Stewardship began its work.

* The ARL called on the OCLC to develop a new policy on sharing bibliographic data.

* Talis and LibLime announced that they would provide OA to 5,000,000+ bibliographic records on the ‡biblios.net platform under under an Open Data Commons Public Domain Dedication and License.

* Merck spun off a non-profit subsidiary, Sage, which will develop and distribute open data.  Among the founding board members is John Wilbanks, of Science Commons.

* GlaxoSmithKline announced deep price cuts on all its drugs in developing countries, a patent pool for all its patents related to drugs for neglected diseases, and OA for all its clinical trial data, positive or negative.

* The Global Biodiversity Information Facility is developing a framework for providing OA to "primary biodiversity data".

* The National Ecological Network Observatory (NEON) is a new open data project from the NSF, expected to be operational by 2016.

* Rep. Frank Pallone (D-NJ) re-introduced a bill (HR 776) to restore the thresholds for reporting of toxic pollution under the Toxics Release Inventory (TRI) program.  The reporting obligation had been scaled back significantly by the Bush Environmental Protection Agency.

* The Center for Democracy & Technology and Open the Government launched a new campaign, Show Us the Data, inviting the public to identify the "most wanted government documents, reports or data sets" that ought to be OA.

* Medpedia, the OA medical wiki limiting contributions to MDs and PhDs, entered its public beta.

* Physiopedia is a new wiki on physiotherapy, operating under a GNU Free Document License.

* I moved my Timeline of the Open Access Movement to the Open Access Directory (OAD) wiki for community editing.

* FLOSS+Art is a new OA book on open art. 

* Vandenhoeck & Ruprecht started providing OA to selected monographs on education research published by its imprint, V&R unipress.

* Writing Space: Readings on Writing is a new OA, CC-licensed book series of educational essays on writing.

* The Istituto della Enciclopedia Italiana is converting the Dizionario Biografico degli Italiani to gratis OA.

* Charles Bailey released the 2008 Annual Edition of his Scholarly Electronic Publishing Bibliography.

* Google started the official process of notifying authors and publishers about their options and deadlines for participating in what it is now calling the Google Book Search Copyright Settlement.

* Google launched a version of Book Search for mobile phones, with more than 1.5 million public-domain, gratis-OA, mobile-ready books for US users, and more than half a million for users outside the US.

* The University of Pennsylvania and Kirtas Technologies are digitizing 200,000+ public-domain books from the Penn libraries.  They will recoup their expenses by selling POD editions.  Under the deal, Penn can decide to make the digital editions OA, but for now is choosing to sell them instead.

* Thanks to the National Yiddish Book Center, over one-half of all the published literature in Yiddish, over 10,000 volumes, became OA at the Internet Archive.

* After Joseph Lorenzo Hall and Danah Boyd went through needless ordeals trying to put CC licenses on their doctoral dissertations, the U of California at Berkeley agreed to make the process easier for future students.

* The Breast Cancer Network of Strength joined the Alliance for Taxpayer Access.

* The University of Salamanca signed the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities.

* Indiana University proposed an infrastructure for digital publishing shared by many colleges and universities.  It would provide economies of scale for journals, university presses, and non-profit societies, making it unnecessary to turn to commercial publishers.

* Columbia University became the first U.S. institution to join the Network of European Economists Online (NEEO).  Last fall it became the first to join Nereus, the related and mostly-OA repository of economic research.

* James Evans and Jacob Reimer published a study showing that there is an OA impact advantage, that it is greater in some fields than others, that it is greater in developing than developed countries, and that the citation boost in moving from TA to OA is smaller than the citation boost in moving from print TA to online TA.  The study focused on delayed gold OA, disregarding both immediate gold OA and all green OA. 

* The PEER (Publishing and the Ecology of European Research) project launched its web site.

* The ARL released an environmental scan in preparation for its next strategic plan.  It identified many trends affecting research libraries, including many for and against OA (but mostly for).

* The Association of Research Libraries Digital Repository Issues Task Force released a report making recommendations on how research libraries could support repositories.

* A report from Canada's Research Data Strategy Working Group documented the gap between the current state of data sharing in Canada and the Canadian ideal.

* PLoS and the Wikimedia Foundation ran a survey of Wikipedia use by scholars.

* DRIVER launched a questionnaire on its search interface.

* Freebase is approaching 5 million "bases" or interconnected, topical OA databases.

* SHERPA's RoMEO database now includes more than 500 publisher policies on copyright and self-archiving.

* RePEc passed the milestone of 700,000 bibliographic items. The last 100,000 were added in the past seven months.

* Ray English won the 2009 Hugh C. Atkinson Award from the American Library Association.  The award is for "a significant national or international contribution to academic/research librarianship and library development" and, in Ray's case, OA advocacy.

* SPARC announced the four winners of the 2009 SPARKY Awards for short videos on the value of sharing ideas.

* The Alexandria Archive Institute announced the winners of the 2008 ASOR Open Archaeology Prize.  First price went to Abzu, the online guide to the Ancient Near East, and second prize wend to the Badè Museum of Archaeology web site.

* Bioinformatics.org announced the six nominees for the 2009 Benjamin Franklin Award for Open Access in the Life Sciences.

* Outsell's new (TA) list of "30 to Watch" in the information industry included at leas three OA resources or companies:  the British Medical Journal, Flat World Knowledge, and Public Library of Science.

* The Autism Speaks list of the Top 10 Autism Research Events of 2008 included its decision to adopt an OA mandate in December 2008.

* The Budapest Open Access Initiative turned seven years old.

* 2009 is Open Access Year in the Netherlands.

* The Public Knowledge Project released Open Archives Harvester 2.3.0.

* Chris Gutteridge developed a JSON (JavaScript Object Notation) export plug-in tool for EPrints repository software.  With Les Carr, Chris also developed, an EPrints service to offer multiple points of access into complex documents such as Word files with illustrations or a slide presentations.

* Novo|seek is a new search engine for PubMed.

*Jurn is a new Google custom search engine indexing more than 900 OA journals in the arts and humanities.

* Economics Search Engine is a Google custom search engine indexing 23,000 economics web sites, including RePEc.

* The Bielefeld University Library enlarged the index and added features to the Bielefeld Academic Search Engine (BASE) of OAI metadata.

* Denmark's Electronic Research Library (Danmarks Elektroniske Fag- og Forskningsbibliotek, or DEFF) adopted a Danish translation of the Knowledge Exchange's License to Publish.

* Germany's Digital Peer Publishing (DiPP) project released an English translation of version 3.0 of the DiPP License.

* Creative Commons launched GreenXchange, a project to use voluntary licensing to replace the research exemption to patents eviscerated in Madey v. Duke.

* The UK Power of Information Taskforce released a beta version of its report, calling for OA and CC licenses for public sector information.

* Gavin Baker assembled a list of recent developments on OA for public sector information.

* The Public Policy Committee of the Association for Computing Machinery released its Recommendations on Open Government, calling for libre OA for government data.

* Wikileaks provided OA for thousands of CRS Reports, and may be able to provide OA for all future CRS reports as they come out.

* Senator Joe Lieberman wrote a letter to the Judicial Conference asking why PACER (Public Access to Court Electronic Records) is not yet OA.

* NECOBELAC (NEtwork of COllaboration Between Europe and Latin American Caribbean) is a new project to promote OA for health-care information.

* India's OA Traditional Knowledge Digital Library (TKDL) is making good on its plan to share its contents with patent offices around the world in order to establish prior art and invalidate bogus patents.

* eIFL.net and JSTOR will work together to provide HINARI-like free or discounted JSTOR access to institutions in eIFL member countries.

* eIFL.net and Bioline International are working together to promote OA, especially gold OA, in developing and transitional countries.

* Three more institutions joined the Flickr Commons:  the State Library of Queensland, the State Archives of Florida, and the Oregon State University Archives.

* James Love proposed a way to hack WTO in order to support public goods, including OA research.

* Elsevier's operating profits for 2008 were $814 million, an 11% increase over the previous year.


Coming this month

Here are some OA-related events coming up in March.

* March 17, 2009.  Deadline for funding proposals to the European Union to create the Scientific Information Repository supporting the European FP7 Research Programme.

* OA-related conferences in March 2009

* Other OA-related conferences


This is the SPARC Open Access Newsletter (ISSN 1546-7821), written by Peter Suber and published by SPARC.  The views I express in this newsletter are my own and do not necessarily reflect those of SPARC or other sponsors.

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