Today marks one year since the National Institutes of Health’s Public Access Policy went into effect. (I covered the issue here in January 2008.) The policy requires that researchers funded by NIH post a copy of their journal manuscripts resulting from NIH-funded work into the freely-available PubMed Central database. This was the first such policy by a U.S. Federal agency. A year later, what impact has the policy had on science, and how has the policy community reacted?

The rule is achieving its goal of making the results of taxpayer-funded research available to other scientists, medical practitioners, patients, students, and the public. Before the policy was signed into law in December 2007, PubMed submissions never topped 1,500 per month, according to NIH statistics. Deposits have climbed since then. After implementation officially began in April 2008, monthly submissions have never dipped below 2,500. In January 2009, the most recent month for which statistics are available, submissions soared above 4,500. Those numbers represent a significant increase in taxpayer-funded information being made freely available to the public.

The policy has also continued to garner support from the library and scientific community, as well as some scholarly publishers. The biggest names in science publishing, though, have lined up against public access. The policy requires that NIH-funded manuscripts be made freely available no later than 12 months after acceptance for publication, which closed-access publishers have asserted will damage their ability to sell subscriptions to the journals in which NIH-funded authors publish their articles. But no journal has announced it will stop accepting the work of NIH-funded scientists as a consequence. Meanwhile, publishing giant Elsevier, one of the staunchest opponents of the policy, announced an 11 percent increase in profits in 2008.

One high-profile response to the policy was Rep. John Conyer’s (D-MI) Fair Copyright in Research Works Act, which would amend copyright law to overturn the policy and prevent other agencies from adopting similar public access policies. Conyers first introduced the bill in September 2008 and held a hearing at the time, and has since reintroduced the bill in the 111^th Congress. The proposed legislation has raised the profile of the issue: the Association of American Universities, which represents top research universities in the U.S. and Canada and is an influential voice in higher education policy, weighed in for the first time in February 2009, supporting the NIH policy and opposing the Conyers bill.

The Obama administration has yet to make a public pronouncement on the policy. The Bush White House raised concerns about the NIH policy but didn’t strongly oppose it, and President Bush signed the policy into law as part of an appropriations bill. President Obama in March also signed the policy into law as part of an appropriations bill—this time amended to make the policy permanent—without publicly criticizing it. When I asked Kei Koizumi, assistant director for federal R&D at the Office of Science and Technology Policy, whether the Obama administration would support the policy, the answer was noncommittal. But supporters of public access are well-placed within the administration, including Harold Varmus, an outspoken advocate and former NIH director, who was appointed to co-chair the President’s Council of Advisors on Science and Technology.

Weiss’s Notebook

CAP Senior Fellow Rick Weiss covered science and medicine for The Washington Post for 15 years, and now he brings his investigative eye to science policy. From cloning and stem cells to agricultural biotechnology and nanotechnology, Weiss examines the issues at the intersection of cutting edge research and public policy.

All victories in Washington are temporary, the pundits say. And if the publishers of scientific journals have their way, then that truism will rise up and save them in the waning days of this Congress.

The publishers, you see, were the losers earlier this year in a long-running battle over what is known in the scientific publishing industry as “open access.” But they’ve been quietly building a legislative Phoenix that they hope to ride to victory this year.

Proponents of open access argue that the results of taxpayer-supported research should be made available on the Web for free within a year after those results are published in journals—sooner if possible. Federal tax dollars paid for the research, they argue, so why should taxpayers have to also buy expensive subscriptions to scientific journals to get the results of those studies—especially when those results from, say, scientists funded by the National Institutes of Health, might help them learn more about a disease they or a family member may have?

On the other side, publishers argue that a policy demanding that results be made widely available for free would undercut their subscription base and their economic viability. Such an approach, they say, fails to appreciate the “value added” they provide by financing the peer review and publishing processes. And they fear that it sends the wrong signal about the importance of copyright protection at a time when the nation should be strengthening, not weakening, the enforcement of intellectual property laws.

In April, building on supportive appropriations language passed by Congress, NIH implemented the policy that it and consumer representatives wanted. It demands that researchers getting NIH funds submit copies of their accepted-for-publication manuscripts to a website that will make those details publically accessible within 12 months after publication.

Game over.

But of course, not.

Proponents of the open access system are equally adamant—and furious that the publishers are trying a legislative end run.

In Terminator-like fashion, it turns out that the publishing industry has come back from the near-dead and helped get new legislation offered up in the House that would effectively undo the NIH policy. The “Fair Copyright in Research Works Act” (HR 6845) would change copyright law to make it illegal for a government agency to demand that grantees hand over their published results for free if either of the two following conditions were met: If anyone other than federally funded researchers was involved in the project (which means virtually all research, since it is rare for federally funded researchers to work alone in these days of multicenter and public-private collaborations) or if any third party added value to the published product—say, by putting the manuscript through an independent peer review process, as happens with virtually all published scientific papers.

The bill was introduced by Rep. John Conyers (D-MI), and by most accounts has no shot at passing in the final stretch of this congressional session. But its language could conceivably be covertly tacked onto other legislation in the term’s final rush.

It deserves to pass, according to Allan Adler of the Association of American Publishers. Among his arguments: The current policy never got a proper review before congressional passage he says. It ignores other working models of open access such as those used by the National Science Foundation that are more flexible and less onerous on the industry. And it forces publishers into an untenable business model. It is the journals, after all, that pay for the independent peer review process, Adler says, which helps everyone trust the results that eventually get published.

Proponents of the open access system are equally adamant—and furious that the publishers are trying a legislative end run. They note that publishers typically pay nothing to expert peer reviewers. Indeed they note, many, if not most, peer reviewers are academics who take time off to read and judge submitted manuscripts—and whose salaries are paid by federal grant money. More proof, they say, that the public is owed free access to the data.

Perhaps their strongest argument is that the system is working. Last year, when NIH had a voluntary policy in which funded researchers were encouraged but not required to submit their accepted manuscripts for pubic access, only about 4 percent of the 80,000 articles published annually in which at least one author was NIH-funded was submitted. Since April of this year, when the policy became a mandate, the numbers have soared to higher than 50 percent, and the rates are increasing every month as scientists get accustomed to the process (which NIH officials say takes about ten minutes of an author’s time). Hundreds of thousands of users are accessing the database every day, according to NIH director Elias Zerhouni, who recently testified to Congress on the matter.

“Publishers should be looking at changing their business models to adapt rather than trying to hold on to something that is slowly dying,” a blogger argued recently in a typical comment on one of the many web sites engaged in heated discussion on open access these days. “Especially if the research and publication costs are being borne by the public.”

One can’t help but feel a little sorry for some of these publishers. Many of the smaller ones are hard pressed for subscribers and funds, and some of them support laudable educational and training programs with the profits they make from their journals. Even the larger ones, which enjoy sinfully high profit margins without even having to take out risky loans against failing mortgages, are already facing a range of challenges in the Internet era, as information moves faster than they can print it and the expectation of free content suffuses the young, data-hungry public.

I also happen to agree with Adler, of the publishers group, that Congress did not handle this in the most upright fashion. The mandate was handled through the appropriations process rather than through conventional legislation, and hearings could have helped hammer out a more perfect and perhaps more flexible system. But for better or worse, a lot of federal policymaking is accomplished through the appropriations process. Potentially lifesaving research on human embryonic stem cells and other studies on early human development have been stalled for more than a decade in large part because of appropriations language. If Adler wants to reform that Congressional shortcoming, I am all for it. But I would start by going after approps language that is really harming society in a big way, not language that is leaning on scientific publishers to share their material more equitably.

In any case, I have not seen any evidence that any of these journals are at serious risk under the NIH plan. Most subscribers (scientists and academic libraries in particular) are not going to dump their subscriptions just because a fraction of each month’s contents will be available for free on the Web within a year. Indeed, the publishers should perhaps be counting their blessings that legislation proposed by Sen. John Cornyn (R-TX) and Joseph Lieberman (I-CT), which would expand the NIH rules to most other federal agencies that dole out research grants, is as stalled in Congress as the Conyers bill appears to be.

The open access system is in place, on a limited scale. I say, “Let the experiment go on.” It’s a great opportunity to see if it works. And it’s a great inspiration for ink-and-paper publishers to start thinking about more modern ways to continue to profit in the inevitably lucrative business of onpassing new scientific findings.

Rick Weiss is a Senior Fellow at the Center for American Progress and Science Progress.

Announcement of the winners may be delayed until the FCC and Congress decide what to do with the D-Block license which failed to sell, receiving only a $472 million offer, well short of the $1.3 billion reserve price. The D-block license is for a wireless network that covers the entire nation, and includes a requirement for the creation of a public/private partnership to build a national emergency response network. House Subcommittee on Telecommunications and the Internet Chairman Edward Markey (D-MA) promised to hold a hearing to discuss how the D-block rules must be revised for a second auction. FCC Chairman Kevin Martin hinted at the possibility of separating the D-block from the rest of the auction so that winners can be announced.

Bidding on the sought-after C-block reached $4.75 billion, exceeding the $4.6 billion reserve bid and thus triggering a provision requiring the auction winners to provide open access to the network. Google lobbied the FCC to include open access rules to this group of licenses, offering to meet the minimum reserve to guarantee the network sold with the attached condition.

Things will only get more interesting in the coming weeks and months: auction winners will be allowed to negotiate with losing bidders and partners over the licenses. How the winners of C-block licenses choose to define “openness” may also prove to be a prickly situation.

Many outlets have been following the decision. Some further coverage and responses:

• Joseph Esposito predicted that publishers with open access experience will suddenly look more attractive for acquisition by other publishers as a result of the Harvard rule (The Scientist blog).
• Stevan Harnad proposed revisions to the rule pertaining to copyright retention, the possibility of waivers, Harvard’s timetable for reviewing the success of the program, and other issues (via Open Access News).
• Mike Carroll predicted that Harvard scholars and librarians will benefit, and wondered which institutions will be wise enough to follow. For example, he said Harvard librarians will be forced to become more familiar with the scholarly work of the faculty (via Open Access News).
• T. Scott Plutchak compared the rule favorably to a similar decision at the National Institutes of Health, praising the Harvard faculty for taking the issue into their own hands, rather than waiting for their superiors to require the move (via Open Access News).
• Andy Guess weighed the merits of the option for Harvard scholars to request a waiver to the rule (via Open Access News).

The policy is the first open access mandate adopted by the U.S. government, and puts teeth into the voluntary policy in place at the agency since 2005. The NIH, which supported the provision, moved quickly to implement the law, announcing its new policy on Jan. 11. The measure follows similar policies instituted by funding agencies abroad, foundations and universities.

The new policy is not only notable for its novelty and the whopping amount of research it will make available, but for its storied history.

Under the new policy, grantees—who will receive $29 billion in taxpayer funding in fiscal 2008, a figure greater than the GDP of 100 countries—will deposit a copy of their research articles accepted for publication into the National Library of Medicine’s PubMed Central database. PubMed Central will then provide free online access to the article—to the worldwide research community as well as citizens and taxpayers. Public access can be delayed up to one year at the researcher’s request, for example, if the publishing journal asks for the delay. Previously, grantee research was only available from the publisher by subscription—and scientific journal subscriptions can cost thousands of dollars annually.

The new policy is not only notable for its novelty and the whopping amount of research it will make available, but for its storied history. The House appropriations committee had first asked for open access at the NIH in 2004. In 2005, the NIH adopted a voluntary policy, asking but not requiring grantees to deposit their research. Researchers, accustomed to relying on journals to disseminate their findings, adapted slowly to the new environment; less than five percent of grantees complied with the NIH’s request. NIH director Elias Zerhouni told a House subcommittee in 2006 that the voluntary policy wasn’t working; the House, in turn, passed language to require a mandate. But the Senate didn’t include a mandate in its appropriations, and the Democratic takeover of Congress pushed the budget into continuing resolutions, maintaining the status quo.

The NIH policy is the biggest legislative victory to date for the American open access movement—and, given the size and impact of NIH funding, for advocates worldwide.

In 2007, open access advocates ramped up their efforts, led by the Alliance for Taxpayer Access—a letterhead coalition driven by the Scholarly Publishing and Academic Resources Coalition, a consortium of academic libraries. (Full disclosure: the author is a consultant and former intern for SPARC.) In addition to rallying grassroots support, advocates circulated a letter of support signed by 26 Nobel Laureates, including former NIH director Harold Varmus. Opponents, led by members of the Association of American Publishers, launched their own coalition—dubbed PRISM, the Partnership for Research Integrity in Science and Medicine—to cast doubts on the provision’s impact on the peer review process and publisher copyrights, even equating public access with government censorship. PRISM in turn drew ridicule from science bloggers, who criticized the group’s statements as Orwellian and the group as astroturf, as PRISM declined to list its own membership. Even some AAP members distanced themselves from the effort. PRISM was seen as the offspring of Eric Dezenhall, known as “the pit bull of PR,” who had been hired by the AAP to develop a PR strategy to combat open access. Despite the dramatic flare-ups, both the House and the Senate included mandatory language in their appropriations bills—only to have it vetoed by President Bush in a broader debate about spending. But the open access provision survived the post-veto scramble to amend the bill to the president’s liking, and on Dec. 26 it was signed into law.

The NIH policy is the biggest legislative victory to date for the American open access movement—and, given the size and impact of NIH funding, for advocates worldwide. The adoption of the policy will introduce more authors to self-archiving—posting one’s own research results online for free access—then any single event to date. NIH funding results in an estimated 80,000 published articles annually, each of which may have several authors. With any luck, the experience will encourage researchers to internalize the benefits of open access—and to share their experience with the students they teach and mentor. Journals likely will not suffer many, if any, cancellations. High rates of self-archiving in physics have not resulted in any attributable cancellations of journals in that field—though they may feel more pressure to provide value and limit price inflation. From 1986 to 2002 journal costs rose 227 percent, more than triple the rate of inflation in the same period as measured by the Consumer Price Index. But science and consumers will benefit immeasurably.

Researchers will gain more complete access to the scientific record; even the wealthiest research institution cannot afford to subscribe to every journal in publication. Free online access also lays the foundation to remove unnecessary permission barriers, using approaches such as the Creative Commons licenses, and to facilitate machine-assisted research via Semantic Web technologies. Taxpayers will benefit from free access to high-quality scientific information—which, for those without an annual subscription, is often sold by the article for $30 apiece. In the case of NIH research, that could mean the best source of information about potential treatments for a spouse, parent, or child who suffers from a disease. Indeed, patient advocacy groups are well-represented and active members of the pro-open access Alliance for Taxpayer Access, including the 600 organizations of the Genetic Alliance.

Moreover, the impact of the NIH policy will be felt outside of biomedical research. If NIH grantees take a shine to open access, as have other research communities where open access has thrived, it will become even more difficult for publishers and nay-sayers to disparage open access. As the PRISM coalition found out, scientists don’t take kindly to being told their research is junk solely because it is shared for free. Other research funding agencies will find more courage to pursue open access policies of their own, perhaps paving the way for a government-wide mandate akin to the Federal Research Public Access Act floated by Sens. John Cornyn and Joe Lieberman in 2006. Some may even push for stronger mandates than the NIH policy—such as the European Research Council policy released on Jan. 10, which halves the NIH’s maximum allowable delay from 12 months to 6.

Open access is a positive development for several goals of science policy: to accelerate research, control costs in higher education, and share information more effectively. The NIH public access policy will move forward on all three fronts and pave the way for progress to come.

Gavin Baker is an information policy consultant and commentator with Baker Open Strategies, LLC.

“New technology may be changing the relationship between democracy and expertise, affording an opportunity to improve competence by making good information available for better governance, ” wrote Beth Simine Noveck in presenting possibilities for “Wiki-Government” in the latest edition of Democracy (via cairns).

In a related post, Noveck points to a recent report from the Center for Democracy and Technology and OMB Watch on the difficulty (or often, impossibility) of using major Internet search engines to find government information, despite the requirements of the E-Government Act of 2002.

But at least one government agency is moving forward to make useful data available to the public through the Internet. USASpending.gov provides detailed information on where Federal budget dollars go, and allows queries for contractors and the recipients of agency grants. The site also includes an API for developers and tech-savvy citizens to retrieve data dynamically and manipulate it in ways unanticipated by the authors of the Federal Funding Accountability and Transparency Act of 2006, the legislation that initiated the project. The site is a collaboration between OMB Watch, and the Office of Management and Budget, with support from the Sunlight Foundation (via the Sunlight Foundation blog).