Backlash against open access

In recent years, scientific publishing has changed profoundly as the Internet simplified access to the scientific journals that once required a trip to a university library. That ease of access has caused many to question why commercial publishers are able to dictate the terms by which publicly funded research is made available to the public that paid for it.

Open access proponents won a big victory when Congress voted to compel the National Institutes of Health to set a policy of hosting copies of the text of all publications produced by research it funds, a policy that has taken effect this year. Now, it appears that the publishing industry may be trying to get Congress to introduce legislation that will reverse its earlier decision under the guise of strengthening copyright protections.

Under existing law, the products of federally funded research belong to the scientists that perform it and institutions that host them. Academic journals have traditionally had researchers transfer the copyright of publications resulting from this research to the journals. The current NIH policy requires that authors they fund reserve the right to place the text and images of their publication in an NIH database hosted at PubMed Central (PMC).

To protect commercial publishers, papers submitted to PMC are not made accessible until a year after publication, and are not required to include the formatting and integration of images performed by the publisher. This one-year limit is longer than that required by other governments and private funding bodies such as the Howard Hughes Medical Institute and the Wellcome Trust. Many publishers have embraced this policy, and allow the fully formatted paper to be made available, sometimes after a shorter embargo.

Open Access meets resistance

Not all publishers have embraced it, however, and some have tried to exact exorbitant fees for allowing manuscripts to be transferred to PMC. Others have engaged in aggressive lobbying against open access efforts.



John Conyers (D-MI)

introduced HR 6845

Those efforts may be paying off. The House of Representatives has seen the introduction of legislation, HR 6845 that, depending on its final format, may significantly curtail or eliminate the NIH's ability to continue its open access policy. The current bill would prevent any arm of the federal government from making research funding contingent upon "the transfer or license to or for a Federal agency of... any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work." Those Section 106 rights include the reproduction of the work.

Although that would seem to rule out the existing NIH policy, there is a certain amount of legal wiggle room there. For example, the NIH could fund a private entity to maintain PMC, and thus have the right to reproduction transferred to an independent entity. Nevertheless, the bill would appear to directly target the prior legislation that put the NIH in the business of mandating public access in the first place.

The Intellectual Property Subcommittee comes up to speed

Last week, the Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on the proposed legislation. If anyone was thinking that policies related to publicly funded scientific research were free of politicking and rampant self-interest so frequently involved in the copyright and intellectual property battles, the hearings would have erased them. Legislators questioned whether it made sense to mandate the transfer of copyrights at a time when the US government was pushing for other governments to respect those rights. At one point, hearing chair Howard Berman (D-CA) noted that the N in NIH shouldn't stand for Napster.



Howard Berman (D-CA)

chaired the hearings

It also became apparent that there was a bit of a turf battle going on. The Intellectual Property Subcommittee clearly felt that it had been ignored during the original passage of the bill that compelled the NIH's open access policy, and several members expressed displeasure at having been bypassed, and suggested the bill was useful simply for allowing them to have a voice on the matter.

That said, many of the representatives were clearly in need of a primer in academic publishing. Different members of the Subcommittee expressed surprise at various aspects of the current system, such as the fact that peer reviewers perform the function free (although, as noted, the process of arranging for peer review can be expensive). Also eliciting surprise was the revelation that authors are not paid by publishers for the transfer of copyright.

In fact, many publishers charge money for the publication of scientific research, even those that obtain copyright to the work in the process. Dr. Elias Zerhouni, director of the NIH, shocked Berman when he mentioned that the NIH hands out $100 million a year to grant recipients specifically to cover the cost of publishing their results. It would certainly have been possible for those testifying in favor of the open access policy to argue that the public pays part of the cost of nearly every stage of the publishing process, and might expect to have some access to the end product.