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Kicking the Doorstop on Open Access

Opponents Are Back with Legislation to Reverse NIH Policy

Journals Nature and Science SOURCE: Since April, researchers publishing work done with NIH support must submit manuscripts for access in a free database. The experiment is working, but large journal publishers aren’t satisfied with the results.

Weiss’s Notebook

CAP Senior Fellow Rick Weiss

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.

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