Progress toward an OA mandate at the NIH, one more time
SPARC Open Access Newsletter, issue #112
August 2, 2007
by Peter Suber

Congress is moving toward an OA mandate at the NIH.  The Appropriations Committees in both houses approved language directing the NIH to strengthen its public access policy by converting the request to a requirement.  The House bill came up for a vote first, and was adopted by the full House on July 19.  As I go to press, the vote by the full Senate is yet to be scheduled.

* What does the bill say?

Here's the language approved by both Appropriations Committees and the full House:

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's 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: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

The most important effect of this language, clearly, is to make the NIH's weak request a strong requirement.  This is the significant, long-overdue reform that will boost the compliance rate with the agency's public access policy from about 4% to something approaching 100%. 

It's also important that the House and Senate are voting on the same language.  If the Senate follows the House in adopting it, then there will be no need for a conference committee to reconcile them, and hence, no additional delay and no additional opportunity for publisher lobbying to dilute or delete the language.

Note what the language does *not* do.  It does not shorten the permissible embargo and it does not shift from central to distributed archiving.  In both respects it continues the present policy, which took effect in May 2005.  Hence, in these respects it is neither an advance nor a retreat.

Nor does it change the target.  Like the current policy, the new language applies only to the final version of the author's peer-reviewed manuscript, not to the published edition.  As publishers escalate the public-relations war, don't forget that the bill gives them a 12 month embargo on the PMC edition of the author's manuscript and a life-of-copyright (i.e. near-permanent) exclusivity on the published edition.  Don't forget either that many of the publishers critical of the proposed policy already provide free online access within 12 months of publication, and do so for the published edition of an article, not just the author's peer-reviewed manuscript.

It's no small point that, for the first time, the new language puts a firm deadline on the permissible embargo.  Because the current NIH policy is only a request, the current 12 month embargo is itself only a request.  Grantees needn't comply at all, let alone within 12 months.  You could say that the new mandate makes an indefinite embargo period definite, or that it shortens it.  In this case, they're equivalent.

It's not clear whether the language only requires a prospective mandate, for new grants, or a universal mandate, for all grants.  As the NIH thinks about its options, I hope it will adopt the Wellcome Trust solution:  first adopt a prospective mandate, and then after a year's notice to existing grant-holders supplement it with a retroactive mandate. 

The new language also follows the current policy in calling for deposit at the time an article is accepted for publication.  But in the current policy, early deposit is an unenforceable request.  The NIH asks for early deposit, "strongly encourages" it, and probably at first expected it.  But by not requiring it, the agency effectively invited publishers to adopt countervailing requirements.  In short order, most publishers with a policy on NIH-funded authors took advantage of this opportunity and required their authors to delay their deposits for a full 12 months.

(Peter Banks, who died last week, separated the American Diabetes Association from the pack by allowing its NIH-funded authors to deposit in PubMed Central immediately upon publication.  I thank him again for that.)

By contrast the new language will enforce early deposit.  Hence, it will (or can) support what I call the dual deposit/release strategy and what Stevan Harnad calls immediate deposit / optional access.  The strategy is simply to require immediate deposit and permit delayed OA.  During the time between deposit and release, publicly available metadata make the article visible to search engines and searchers.  I've recommended this policy for every funder, but one of the reasons is especially important for the NIH:  it mitigates the harm of a lengthy embargo.

The immediate deposit requirement will also make compliance easier for grantees.  It will eliminate any ambiguity about the timing, eliminate unexpected nags 12 months after publication when authors have moved on to other projects, and eliminate the career-jeopardizing dilemma that forced authors to choose between snubbing their funding agency and snubbing their publisher.

Finally, note that the language contains a curious proviso:  "That the NIH shall implement the public access policy in a manner consistent with copyright law."  Some publisher organizations claim that the bill might violate copyright and seize on this proviso for leverage.  But we have to distinguish two questions:  whether the bill does in fact violate copyright and whether this proviso gives publishers any leverage they didn't already have.  The second question shows why the proviso is so curious.  It goes without saying that an agency shouldn't violate copyright law, just as it shouldn't violate laws against speeding, spitting, or cutting hair without a license.  The proviso is what lawyers call surplusage; it spells out an obligation that would apply even if not spelled out.

There's no doubt that an OA mandate at the NIH could be implemented "in a matter consistent with copyright law".  In fact, publishers who have been trying to boost voluntary compliance with the current policy, as a tactic to head off a mandate, effectively concede that compliance need not cause copyright problems.

There are many ways for the NIH to implement an OA mandate without violating copyright.  For example, (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.  (3) Or it could use the 2003 federal-purpose license to distribute the results of NIH-funded research.  Since these three strategies are all compatible, it could use them in any combination.

The 2003 federal-purpose license, 45 CFR 74.36(a), applies to all agencies within the Department of Health and Human Services (HHS), including the NIH, and says this:

The recipient [grantee] may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award [grant]. The HHS awarding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.

A nearly identical 2005 license, 2 CFR 215.36(a), applies to all federal agencies, not just to those within HHS.  FRPAA (Federal Research Public Access Act) would rely on this license.

The NIH hasn't said how it would implement a mandate.  But because it has at least three options that steer clear of copyright problems, opponents should hold their fire and proponents should not worry that copyright law will derail the public interest (again).  This doesn't mean that opponents won't sue to stop NIH from implementing a mandate.  But it does mean that a lawsuit would only delay a mandate, not defeat one.  In fact, the curious proviso in the bill should immunize the NIH from any lawsuit until the details of its policy are made public.  If a bill says that an agency should take a certain step and take it lawfully, then nobody can complain in advance that it won't be lawful.

* How good is the bill?

The bill is not everything we wanted but it's a significant, unmistakable gain on the most important front --the mandate-- and it's not a loss or retreat on any front.

I wish the bill had shortened the embargo.  Any embargo is a compromise with the public interest, and longer embargoes are more harmful in medicine than in other fields.  But I'd much rather have a mandate than a shortened embargo, if we had to choose.  The reason is simply that a short embargo without a mandate isn't really short, since there would be no enforceable deadline for ending the embargo and providing OA.  Moreover, we don't have to choose.  Shortening the embargo can be our next goal.  Remember that FRPAA gained public support and momentum last year before it expired without a vote.  It shortens the embargo to six months, extends the mandate across the bulk of the federal government, and it's coming back this year.

(Aside:  Even though immediate OA is in the public interest, I'm willing to accept some embargo.  Publishers like to say that they add value by facilitating peer review by expert volunteers.  This is accurate but one-sided.  What they leave out is that the funding agency adds value as well, and that the cost of a research project is often thousands of times greater than the cost of publication.  If adding value gives one a claim to control access to the result, then at least two stakeholder organizations have that claim, and one of them has a much weightier claim than the publisher.  But if publishers and taxpayers both make a contribution to the value of peer-reviewed articles arising from publicly-funded research, then the right question is not which side to favor, without compromise, but which compromise to favor.  So far I haven't heard a better solution than a period of exclusivity for the publisher followed by free online access for the public. This compromise-by-time is buttressed by a second compromise-by-version:  publishers retain control over the published edition for the life of copyright while the public receives OA to the peer-reviewed but unedited author manuscript.  Publishers who want to block OA mandates per se, rather than just negotiate the embargo period, are saying that there should be no compromise, that the public should get nothing for its investment, and that publishers should control access to research conducted by others, written up by others, and funded by taxpayers.)

Even though the bill is not everything we wanted, it's a major step forward and needs our support.  Here are three reasons why:

First, it will hugely increase the volume of OA medical research.  The NIH is the largest funder of non-classified scientific research in the world, with a budget ($28 billion in fiscal 2007) larger than the GDP of 140 nations.  Its research results in 65,000 peer-reviewed journal articles every year or about 180 per day. 

Second, an OA mandate at the NIH will break the ice within the US, which so far has no OA mandates at public funding agencies.  By contrast, there are public agencies with OA mandates in Australia, Austria, Belgium, Canada, France, Germany, Scotland, and the UK.  The UK, in fact, has six (five of the seven Research Councils UK plus the Department of Health).  The NIH was the first public funding agency to go as far as to encourage OA, but so far we haven't gotten any further.  Once we get over this hump and endorse the principle of mandatory public access for publicly-funded research, we pave the way for similar policies at other agencies and for their generalization in FRPAA.

Third and finally, achieving an OA mandate at the NIH will complete a long struggle.  If I had to recap the long, frustrating saga in just a dozen stanzas (give or take), I'd use these:

(1) July 14, 2004.  Congress asked the NIH to adopt an OA mandate.

(2) September 3, 2004.  In the face of fierce publisher lobbying, the NIH drafted an OA request instead of a mandate.

(3) November 20, 2004.  Congress retreated and affirmed the NIH decision to request rather than require OA.

(4) May 2, 2005, the NIH policy took effect as a request.

(5) November 15, 2005, the NIH's own Public Access Working Group (PAWG), appointed by the agency to advise it on implementing and improving the policy, recommended that the request be strengthened to a requirement and that the permissible delay be shortened from 12 months to 6 months.

(6) Early February 2006, the NIH sent a progress report to Congress (dated January 2006) showing that the rate of compliance with its OA request was below 4%.

(7) February 8, 2006, the National Library of Medicine Board of Regents endorsed the November 2005 PAWG recommendations and called for an OA mandate and shortened embargo.

(8) April 4, 2006, NIH Director Elias Zerhouni told the House Subcommittee on Labor, Health and Human Services, Education, and Related Agencies that "it seems the voluntary policy is just not enough" to achieve the agency's goals.

(9) June 15, 2006, the House Appropriations Committee approved language establishing an OA mandate at the NIH.

(10) October 2006 - January 2007.  The Senate was silent on the issue in its own appropriations bill, and neither bill was adopted by October 1, when fiscal 2007 began.  In fact, neither bill was adopted by the November elections, in which the Democrats won control of both the House and Senate.  After the election, party politics created an appropriations standoff, forcing the use of a continuing resolution to fund the government, in effect putting aside the carefully crafted appropriations bills without a vote.

(11) March 19, 2007, Elias Zerhouni testified before the Senate Subcommittee on Labor, Health and Human Services, Education, and Related Agencies:  "We need to make [public access] a condition of federal fund granting....A mandatory policy seems to be the one that will be necessary for us to achieve our goals."

(12) June 21, 2007.  The Senate Appropriations Committee adopted language establishing an OA mandate at the NIH.  A vote by the full Senate is still unscheduled.

(13) July 12, 2007.  The House Appropriations Committee adopted language establishing an OA mandate at the NIH.  The full House adopted the same language a week later (July 19).

* What's next?

The full Senate still has to vote on the language, and the vote will open the door to amendments.  If the Senate approves amended language, then the two houses will have to reconcile their differences in a conference committee, probably later this fall.

Either way, we also need a presidential signature.  Here things get trickier.  President Bush has already signalled that he'd like to veto the Labor-HHS appropriation bill, for reasons entirely unrelated to the OA provision. 

The OA mandate is one part of a large and complicated appropriations bill, which itself is one of 12 appropriations bills needed to fund the federal government.  In total, the appropriations bills from the Democratic-controlled Congress would spend $23 billion more than President Bush would like to spend.  This is only 0.008% of the total $2.9 trillion appropriation.  But the 2008 election season has already begun and Bush wants to remind voters that the Republicans, despite the last six years of evidence, are the party of fiscal restraint.  An OA mandate at NIH could be collateral damage in an unrelated battle, another casualty of Iraq.

If Bush vetoes the Labor-HHS appropriation, the House would need 290 votes to override it.  But the bill only received 276 votes the first time around.  The Dems are confident they could round up the extra votes and the Republicans are confident they could not.  Both parties seem eager to show their political stripes in this battle. 

If I had to bet today, I'd bet on both Senate approval and a Bush veto, unfortunately.  Bush's veto threat is real and Republicans see some gain in fighting an override vote, win or lose.  If Bush does veto the bill, we'll turn to post-veto strategies.  It's possible to win the mandate this year, even with a veto.

Veto or not, the issue may not be resolved until the fall.

Because the outcome is still up on the air, it's too early to offer a post-mortem on it.  So let me try a pre-post-mortem, which I know is preposterous.

Two important factors work against an OA mandate:  (1) the highly-organized, highly-funded publishing lobby, more energized this year than last; and (2) the President's desire to show his base that he can restrain spending, at least on health insurance for children if not on war. 

Six important factors work for an OA mandate:  (1) the two-year, good-faith trial of a voluntary policy, the good documentation of the result, and the dismal rate of compliance; (2) the support shown by the NIH itself, especially Director Zerhouni, (3) last year's introduction of FRPAA and the nationwide support it garnered; (4) the support shown by university provosts and presidents, disease groups, Nobel laureates, researchers, and citizens; (5) the adoption of OA mandates at other public funding agencies around the world; and (6) legislator weariness with fear-mongering and disinformation by the publishing lobby, more exasperating this year than last.

* What you can do

If you're a US citizen, contact your Senators and ask them to support the Senate Labor-HHS appropriations bill (S.1710).  Do this soon, since we don't know when it will come up for a vote. 

The Senate Labor-HHS Appropriations Bill, S.1710
(The final colon is part of the URL.)

The House Appropriations bill was H.R. 3403 (text not yet in THOMAS)

If the Senate passes the bill and Bush vetoes it, contact your Senators and Representative and ask them to override the veto.

Find the contact info for your Congressional delegation through CongressMerge.
...or use the action alert from the American Library Association.  Just enter your zip code, fill in your contact info, compose your message, and go.

For help composing your message, see this plain-text version of the SPARC talking points (converted to plain text by Charles Bailey for easy cut/pasting),
...or quote from and link to the July 8 open letter from 26 Nobel laureates.

* Here's some of the news and comment from the past month

Letter from the Association of American Publishers to Congress opposing an OA mandate at the NIH, dated June 25 but released on July 1, 2007.

Congressional Panel Favors Access to Publicly Funded Research, a press release from the Alliance for Taxpayer Access, June 28, 2007

NIH Public Access Policy to be Considered by full House Appropriations, ACRL Legislative Update for July 6, 2007.

An Open Letter to the U.S. Congress Signed by 26 Nobel Prize Winners, July 8, 2007

Battle to Resume as NIH Seeks to Require Deposit in PubMed Central, Library Journal Academic Newswire, July 10, 2007.

Daniel Pulliam, Bill to Require NIH to Publish Research Online, Tech Insider, July 10, 2007.

Publishers Fight Hard to Strike NIH Policy, but Congress Holding Firm, Library Journal Academic Newswire, July 12, 2007.

Podcast interview with Heather Joseph, Executive Director of SPARC, on the bill to mandate OA at the NIH, July 13, 2007.

Peter Suber, House vote on OA mandate next Tuesday, Open Access News, July 13, 2007.

Congressional Support Builds for Access to Publicly Funded Research, a press release from the Alliance for Taxpayer Access, July 13, 2007.

Marc Meola, Urgent Action Needed On NIH Policy - Call Your Reps, ACRLog, July 13, 2007.

NIH Public Access Policy Update:  Request for letters to all Representatives and Senators, a press release from the Alliance for Taxpayer Access, July 13, 2007.

Peter Suber, Tell Congress to support an OA mandate at the NIH, Open Access News, July 14, 2007.

NIH Public Access Policy Update: Request for letters to all Representatives and Senators, July 14, 2007

Letter from seven library associations to the House of Representatives in support of an OA mandate at the NIH, July 16, 2007.

Letter from seven library associations to the Senate in support of an OA mandate at the NIH, July 16, 2007.

NIH Mandatory Policy Backed in Congress, but Copyright Concerns Remain, Library Journal Academic Newswire, July 17, 2007. 

Brendan Ballou, Open Access: House Vote Tomorrow, Public Knowledge blog, July 17, 2007.

Peter Suber, OA mandate for NIH clears another hurdle, Open Access News, July 18, 2007.

NIH Policy Spurring Discussion of How Best to Ensure Public Access, Library Journal Academic Newswire, July 19, 2007.

Peter Suber, Houses approves OA mandate for NIH, but Bush may veto, Open Access News, July 20, 2007.

House Backs Taxpayer-Funded Research Access, a press release from the Alliance for Taxpayer Access, July 20, 2007.

Brandon Keim, One Small Vote for House, One Giant Leap for Open Science, Wired News, July 20, 2007.

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

David J. Hanson, House Bill Mandates Public Access To Research Results
Legislation would require free online access to NIH-funded research papers within 12 months, Chemical & Engineering News, July 24, 2007.

Scott Jaschik, Momentum for Open Access, Inside Higher Ed, July 24, 2007.

William Walsh, Schroeder follows Dezenhall's script, Issues in Scholarly Communication, July 24, 2007.

Peter Mühlbauer, Erfolg für Open Access in den USA, Telepolis, July 24, 2007.

Accessing NIH research, Los Angeles Times, July 28, 2007.,0,2419093.story?coll=la-opinion-leftrail

Dan Penny, NIH Public Access Policy Gets Congressional Backing, Outsell/EPS Insights, July 31, 2007.  (Not even the URL is accessible to non-subscribers.)


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