The open-access plan from the House Appropriations Committee
SPARC Open Access Newsletter, issue #76
August 2, 2004
by Peter Suber
On July 14, the U.S. House Appropriations Committee adopted a set of recommendations for next year's federal budget.  One key recommendation would have the National Institutes of Health (NIH) put a condition on its research grants so that articles based on NIH-funded research would be deposited in PubMed Central (PMC), the NIH's open-access digital library.  In most cases, the articles would not become OA through PMC until six months after publication in a journal.  But if NIH paid any part of their publication costs, they would become OA immediately.

This recommendation arose in talks between NIH leaders and the members of the Appropriations subcommittee responsible for NIH funding (the House Subcommittee on Labor, Health and Human Services, Education, and Related Agencies).  All signs suggest that the NIH and the appropriations subcommittee both worked on the plan before the subcommittee approved it.  That was the first big step.  The second was getting the parent Appropriations Committee to sign off on it. 

* The language of the appropriations report

The exact language has not yet been published by the committees.  But SPARC has put an unofficial version of it on its web site.  Please understand that this is only our best understanding of the language and that it is subject to amendment as the appropriations process continues. 

The [Appropriations] Committee is very concerned that there is insufficient public access to reports and data resulting from NIH-funded research. This situation, which has been exacerbated by the dramatic rise in scientific journal subscription prices, is contrary to the best interests of the U.S. taxpayers who paid for this research. The Committee is aware of a proposal to make the complete text of articles and supplemental materials generated by NIH-funded research available on PubMed Central (PMC), the digital library maintained by the National Library of Medicine (NLM).  The Committee supports this proposal and recommends NIH develop a policy, to apply from FY 2005 forward, requiring that a complete electronic copy of any manuscript reporting work supported by NIH grants or contracts be provided to PMC upon acceptance of the manuscript for publication in any scientific journal listed in the NLM's PubMed directory. Under this proposal, NLM would commence making these reports, together with supplemental materials, freely and continuously available six months after publication, or immediately in cases in which some or all of the publication costs are paid with NIH grant funds. For this purpose, "publication costs" would include fees charged by a publisher, such as color and page charges, or fees for digital distribution. NIH is instructed to submit a report to the Committee by December 1, 2004 about how it intends to implement this policy, including how it will ensure the reservation of rights by the NIH grantee, if required, to permit placement of the article in PMC and to allow appropriate public uses of this literature.

Here are ten annotations to help understand the proposal. 

(1) Who would have to deposit the text?  This is a responsibility of the grantee, not the grantee's publisher.  However, there's nothing in the language to prevent services from springing up to help grantees in this regard.  I see no reason why grantees couldn't be helped by their publishers, their employers, PMC itself, or third-party entrepreneurs.  Grantees will not have to tag or mark-up their texts, or prepare them in any special way, before deposit.

(2) What version of an article would have to be deposited?  The version accepted by a journal's peer-review process.  Preprints would not suffice, but there are at least two kinds of postprint.  If the peer-review process introduced one layer revisions and copy editing introduced another, then only the former would have to be included in the PMC's OA edition.  (The distinction between these two kinds of postprint is not clearly spelled out in the text, but a person close to the Appropriations Committee tells me that this is the Committee's intent.)

(3) What "supplemental materials" would have to be deposited alongside the full-text articles?  Just the tables and data that authors submit with their articles.  In some journals, when these will not fit into the print edition, they are published in an electronic supplement.  The clause does not apply to raw data or lab notebooks.

(4) Why PubMed Central?  The obvious answer is that it is maintained by the NIH, that it already houses a very large body of medical literature, that it has benefited from years of infrastructure refinements, and that it is committed to open access, long-term preservation, and interoperability.  Some publishers have political objections to PMC and would like to see Congress allow grantees to put the literature elsewhere, either in multiple repositories or in any repository that meets certain conditions.  For the purposes of OA, these amendments would cause no problem.  At the same time, however, the high quality of PMC makes them unnecessary.  Some of the objections are based on misunderstanding, as if PMC conducted peer review and therefore as if this the plan was a step toward "government-controlled science".  Some are based on distrust of the long-term government commitment to science or, in fact, to anything.  The short answer here is simply that deposit in PMC is compatible with deposit elsewhere and with multiple copies to enhance long-term preservation.

(5) When would deposit in PMC have to take place?  Upon "acceptance" of the article by a journal.  This means that the deposit might take place up to six months before PMC releases the OA edition to the public.  Authors who choose not to submit their work to a journal (for example, because it contains patentable discoveries) will not have to deposit copies in PMC.  The same goes for authors who write books instead of journal articles, or whose work is rejected by journals.

(6) When would PMC release its OA edition of the article to the public?  If NIH paid "some or all of the publication cost", then immediately; otherwise, six months from the date of publication.  It doesn't matter whether the publication costs paid by NIH are color or page charges at non-OA journals or processing fees at OA journals, and it doesn't matter whether NIH paid all or only some of these costs.  Many publishers object to this rule on the ground that even a small payment from NIH would trigger immediate OA.  This provision seems to have been suggested by NIH as a way to treat OA and non-OA journals equally and not to favor one form of journal over the other.

(7) Why limit the policy to articles accepted by a "scientific journal listed in the NLM's PubMed directory"?  The committee's intention here was to ensure the quality of the articles in PubMed Central. 

Exactly which list of journals is this?  According to a source within the NIH, the existing list that best fits the legislative label ("NLM's PubMed directory") is the list of journals indexed in Index Medicus, currently with 4,098 titles.  However, my source tells me that even before the appropriations report came out, NLM was planning to produce a larger list that starts with the Index Medicus list and then adds journals indexed in smaller databases that later merged with Medline.  The result will have around 4,800 titles and fit the legislative description even better.

In short:

The list of journals indexed in Index Medicus (4,000+ titles)
(best fit so far but soon to be superseded)

Criteria for including journals in the Index Medicus list

The list of serials indexed for online users of NLM (10,300+ titles)
(not the intended list, too indiscriminate and including many defunct titles)

The list of Entrez PubMed journals (I haven't been able to count these yet)
(not the intended list)

The PubMed Central journal list (150+ titles)
(not the intended list)

Note that the selectivity of the list will be two-edged.  On the one hand, it will help keep PMC quality high.  But on the other, it will open a loophole.  NIH-funded research that winds up in unlisted journals needn't be deposited in PMC.  This is not the kind of loophole that authors might seek out; it's the kind of loophole that means that taxpayers won't get OA to 100% of NIH-funded research.

Can journals seek it out? Can listed journals exempt themselves from the OA plan by removing themselves from the list?  This is not clear.  On the one hand, the current language limits the OA condition to work accepted by listed journals.  On the other, journals may not have much control over NLM's decision to list them.  The list is valuable precisely because it's built on neutral, public criteria, not self-selection.  My source at NLM tells me that in the past NLM has only removed journals that stop publishing regularly and has never removed citations even at a journal's request. 

Even if journals could remove themselves from the list, they should think twice about trying.  It's not just a formality.  PubMed averages 60 million visits every month.  For a journal to give up this exposure, it would also give up a large part of its attraction to authors who submit their work.

Here are a few questions and objections that are not tied to specific clauses of the report language.

(8) Will this restrict the freedom of authors to publish in non-OA journals?  Some publishers are already saying "yes", but they are overstating the case.  The proposal in the appropriations report would essentially mandate postprint archiving.  But all OA journals and about 84% of non-OA journals already permit postprint archiving.  So NIH-funded authors will be able to choose among all OA journals and 84% of the rest.  More or less.  One reason to think "more" is that the number of journals that permit postprint archiving has been rising steadily since Elsevier decided to do so in May.  One reason to think "less" is that some of these journals permit postprint archiving in institutional repositories but not in disciplinary repositories like PubMed Central.

The 84% figure comes from Stevan Harnad's journal-level supplement to Project SHERPA's publisher-level data on copyright and archiving policies.

The JISC-OSI report from February 2004 (p. 50) showed that 70% of authors surveyed would "willingly" abide by a mandatory OA archiving requirement from their funding agency.  As knowledge of OA spreads among scholars, enthusiasm for it spreads apace, so this number is only going up.  Publishers who pretend to object on behalf of authors are getting it wrong and attempting to disguise their own objections.

Another sign that publishers are overstating the problem is that they are quick to attribute restrictive policies to other, unnamed publishers but slow to avow these restrictive policies themselves.  Let's hear from publishers (publishers in the NIH's general ambit of biomedicine) who are willing to drop the scare tactics and speak for themselves.  How many are willing to refuse to accept work based on NIH-funded research?

(9) Will the cost of enlarging PMC to handle the new submissions divert funds from the NIH research mission?  Martin Frank, Executive Director of the American Physiological Society and organizer of the DC Principles, opposes the plan in part because he estimates that it will cost the NIH $75-100 million (apparently per year).  Frank made this objection in person at the July 20 E.Journal Summit meeting sponsored by the National Academy of Sciences.  David Lipman, director of the NLM and PMC, responded that this estimate was too high by at least an order of magnitude.  However, it's too early to give a precise account of the cost, because it will combine fixed costs (a mechanism for accepting author submissions) and some variable costs (tagging the papers that need tagging). 

Frank also argued more generally that any NIH funds spent on open access through PMC would be ill-spent, since they could be spent instead to "find the next cure for heart disease, cancer, or Alzheimer's Disease".  This a false dilemma that overlooks or denies the role of open access in accelerating research for cures for heart disease, cancer, and Alzheimer's.  Disease advocacy organizations, or at least those that do not publish subscription-based journals, support open access precisely because it accelerates this critical research.  For example, see the endorsement of the NIH plan from the Genetic Alliance, a coalition of 600+ advocacy, research and health care organizations.

Martin Frank objection based on the costs to NIH and PMC

Mark Doyle's response to Frank's objection

Genetic Alliance endorsement of the NIH OA plan

According to the House Appropriations Committee report, the total NIH R&D appropriation for FY 2005 will be $27,923 million, the same as the NIH request.  The NLM portion of this will be $317 million, the same as the request.  While the overall NIH R&D budget increased 2.58% over the estimated FY 2004 budget line, the NLM portion increased 2.9%.

(10) Some publishers object that we should "let the market work" and not turn to a federal mandate.  One problem with this objection is that scientific research and its dissemination are permeated by government spending and government policies.  Hence, this is not a market in any ordinary or classical sense at all.  For example, in most countries (certainly in the U.S.) most funded scientific research is funded by governments, most scientists work at public institutions and are paid by governments, and most subscriptions to subscription-based journals are purchased by public institutions and paid for by governments.  If journal publishers really meant "keep government money and policymaking out of this sector", most would go bankrupt immediately. 

A second problem with the objection is that almost every observer not paid by publishers believes that the journal publishing system is dysfunctional and unsustainable.  I'm thinking of the universities (like Harvard, Stanford, Duke, and Cornell) that can no longer afford to subscribe to the range of journals they could formerly afford, the financial analysts (like PNB Paribas and Credit Suisse First Boston) that have analyzed the industry for investors, and the government panels like the UK House of Commons Science and Technology Committee that have investigated the industry for universities and taxpayers.  Insofar as it's a market, it has failed. 

I've heard publishers complain (again, at the E.Journal Summit in July) that this federal mandate will force publishers to adopt an open-access business model.  But in every case, these publishers misunderstood the proposal.  It proposes OA through archiving, not OA through journals.  OA through archiving will have consequences for journals, but it will not require journals to convert to OA business models. 

Finally, if the publishers mean that governments should take no actions that reduce profits for private-sector businesses, then the objection is easily answered.  Congress and the NIH work for all U.S. taxpayers, not for the subset represented by publishers.  The purpose of this plan is to give taxpayers the access for which they have paid, and thereby to stimulate and accelerate research.  It's about advancing the public interest, not a private interest.

University actions against high journal prices, and the accompanying public statements denouncing the journal publishing system as unsustainable

Financial analyses of the journal publishing market by PNB Paribas and Credit Suisse

Scientific Publications: Free for All?  (The report of the inquiry by the UK House of Commons Science and Technology Committee, July 20, 2004.  For more details, see the next story below.)

* The procedural steps still to come

So far the NIH OA plan is just a recommendation of the House Appropriations Committee.  It has to come to a vote of the full House of Representatives, where it might be amended.  Many members wanted the vote to take place before Congress adjourned for its summer recess last week (July 23) but it was not to be.  So the vote has now been postponed until at least Labor Day, when Congress reconvenes.  Separately, the same bill will be taken up by the Senate Appropriations Committee and its subcommittee with jurisdiction over the NIH.  The Senate Appropriations Committee may prepare its own version of the bill or even decide not to address the matter.  When it has approved a Senate version of the bill, the full Senate will have to vote.  As in the House, once the bill goes to the floor of the Senate for a vote, it will be subject to further amendment.  If the Senate version of the bill differs from the House version, then the differences will be worked out by a conference committee.  The resulting conference report goes back through both chambers for one last approval and then on to the President for signature or veto.

The NIH OA plan is only one tiny part of a huge appropriations bill governing the budgets of the Departments of Labor, Education, Health and Human Services, and several related agencies for fiscal year 2005, which starts on October 1, 2004.  Everyone wants the budget to be approved before the new fiscal year begins, but it doesn't always happen.  (When it doesn't, Congress adopts continuing resolutions to keep the government running.)  So the vote is already delayed until at least September. Semi-predictable annual forces may delay it until October.  And special election-year pressures may delay it until November or later.

Even if the language is adopted without substantial revision, it won't immediately require NIH to adopt a new policy.  Instead, it will require the NIH to submit a plan to Congress by December 1, 2004, describing how it will implement the OA policy expressed in that language.  The NIH plan will likely be published for a period of public comment before it is made final and given effect.

* How this plan differs from the Sabo bill

Martin Sabo (D-MN) submitted his Public Access to Science Act to Congress in June 2003.  Procedurally it's still alive but politically it's been dead for some time.  Until the current NIH OA proposal, it was the single most direct legislative proposal ever submitted to Congress on behalf of open access.  It didn't die because OA opponents outnumbered OA proponents; we never got far enough to find out.  It died because it was written so that even OA proponents could not line up behind it.

(1) The Sabo bill would have revised U.S. copyright law to deprive federally-funded research of copyright.  The new plan does not affect copyright law.  NIH-funded research is currently copyrightable and will remain copyrightable if the plan passes.

(2) The Sabo bill would have put some literature into the public domain without creating open access to it.  The new plan would provide open access itself. 

(3) The Sabo bill would have applied to classified military research, revenue-producing books, and patentable discoveries --not by intent but because the language was not crafted to exclude them.  The new plan does not apply to classified research (because the NIH doesn't fund any) or to books (because the language is limited to journal articles).  It might apply to research that results in patentable discoveries, but only to the research that the grantees themselves choose to publish in journals. 

(4) The Sabo bill was proposed by one Democratic member of the House.  The new plan was proposed by a Republican-controlled committee.  This matters because it shows that OA is not a liberal or Democratic issue any more than a conservative or Republican issue.  It's very good for us that OA is, and is perceived to be, a non-partisan issue about the dissemination of science and the effectiveness of the taxpayer investment in research.

The Sabo bill (HR 2613)

Martin Sabo's Public Access to Science Act, my analysis from SOAN for 7/4/03

* Conclusion

This plan is an extraordinary step forward.  Given the mistakes of the Sabo bill, we can be very grateful that this plan avoids all of them.  It would provide actual OA to an important body of taxpayer-funded research, not just the legal basis or permission for OA.  It would avoid needless quarrels with friends of OA who also happen to be friends copyright, patents, or book revenue.  It starts with the most urgent federal research (medical research) and the largest federal research funder (the NIH).  It would provide OA through archiving, which is less expensive, less disruptive, and more readily scalable than OA through journals, although OA through journals is no less essential.  It preserves the freedom of scientists to publish in nearly any journal that will accept their work.  And the six-month embargo ensures that the plan is compatible with the survival of non-OA journals, a fact that may be critical for the political viability of the plan.  Publishers have already won large concessions and should be satisfied.  For the first time ever, we have a realistic political chance of achieving a significant wave of bona fide OA in one giant step.

The language of the NIH OA plan in the House Appropriations report (unofficial)

House Committee on Appropriations

House Subcommittee on Labor, Health and Human Services, Education, and Related Agencies

Access to Biomedical Research Information, the NIH-NLM report to Congress (May 2004)

SPARC action-page to support the NIH OA plan

Public Knowledge action-page to support the NIH OA plan

Opposition to the plan from the Association of American Publishers

SPARC argument for taxpayer-access to taxpayer-funded research

The taxpayer argument for open access, my analysis from SOAN for 9/4/03

For a comparison of the NIH OA plan with the OA plan proposed in the same week by a committee of the UK House of Commons, see the next story, below.  For links to news stories about the NIH OA plan, see the section on major news stories, below.

* Postscript.  I'm already getting email from friends of OA who fear that the plan will be harmful.  Their objection is nearly the same as the objection many had to the Elsevier decision to permit postprint archiving, namely, that it will not apply to enough of the literature to allow libraries to cancel journal subscriptions.  My response is the same:  (1) where it applies, the plan provides genuine OA, (2) it brings the benefits of OA to all participating authors and all of their readers, and (3) if it doesn't yet help other authors, other readers, or libraries, then that doesn't make the plan harmful to OA, merely insufficient.  This plan will definitely expand OA to medical research, but no one thinks of that as a reason to stop working for OA in other fields.  The plan will definitely expand OA archiving, but no one thinks of that as a reason to stop working for OA journals.  As I argued last month in discussing the Elsevier decision, "we'll have at least two reasons to continue to work for OA journals even in a world of widespread OA archiving:  first, to help libraries solve the pricing crisis, and second, to ensure the survival of peer-review providers."


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