Public access is law at the NIH: What’s next?

Posted on 2 January 2008
Filed under Academia, Creative Commons, Licenses, Open access, Publishing

On Dec. 26, President Bush signed HR 2764, the Consolidated Appropriations Act, bringing into law a requirement for a mandatory public access policy for National Institutes of Health grantees.

Peter Suber has (as usual!) been covering events at Open Access News, and today adds his comments in his newsletter. If you’re unfamiliar with the policy, start there. The newsletter also links to the coverage at OAN, including links to commentary around the Web.

As Peter points out, it’s important to remember that although the mandate is now on the books, it isn’t yet in effect. In other words, Congress has instructed the NIH to adopt a mandate; now it’s time for the NIH to implement it. The legislative language is relatively brief, so there are several details for the agency to work out. Peter mentions some of the open questions in his newsletter; here are my predictions and suggestions.

First, though, let me affirm the significance of the legislative victory. A mandatory self-archiving policy for the NIH will make a strong, positive contribution to the progress of science, to taxpayer access and public understanding, and to the momentum of open access. This is important and should be applauded. Peter says it as well as I could, so again I refer readers to his newsletter.

Before addressing Peter’s questions, I want to raise one of my own: the question of when. The legislative language doesn’t set a deadline or timeline for implementation. Hypothetically, an unwilling NIH could delay implementation indefinitely, until forced by a court order or later Congressional arm-twisting. On the other hand, the NIH might have been preparing for implementation prior to the language’s passage, and might adopt its revised public access policy next week. These examples are extremes and hypotheticals — I don’t think either is the case — but there’s definitely ample wiggle room.

I predict, then, that the opponents of public access (some scientific publishers) will ask the agency to delay implementation, probably under the guise of needing time to revise their own policies. This request will be private at first, and the NIH will probably agree for a time. Eventually, though, the agency will want to implement the policy; inevitably, the publishers will claim they’re not ready, and that premature implementation will do irreparable harm to their business, and that they’ll be forced to seek a court order blocking implementation if the NIH goes forward.

This delay strategy — first asking, then suing — could be powerful for the publisher opponents of public access. Eventually, they’ll lose; that much is clear. But the sabre-rattling — in public, private, and the courts — could deter other agencies from adopting strong public access policies, and Congress from legislating them. This is basically a FUD strategy — and don’t underestimate the impact of fear, uncertainty, and doubt, particularly on specialized technical issues of limited interest to the general public.

I suggest, then, that the advocates of public access keep a soft but steady stream of correspondence to the NIH, Congress, and other funding agencies. All three need political cover, especially to pursue policies not yet legislated (in the light of the above-predicted opposition FUD). Regarding the legislation already passed, the NIH will need to be reminded that taxpayers are watching, and want to see public access implemented sooner rather than later; the NIH also needs to know it has back-up in court. The Bush administration isn’t a great fan of the mandatory public access policy (though its opposition is the mildest possible, and much closer to ambivalence); the administration may end up in the position of having to defend in court a policy it doesn’t like. Finally, Congress will need to be reminded that voters like public access, so it will be proactive in oversight of the implementation (including if/when the lawsuits drop).

On to Peter’s questions:

How will the NIH deal with conflicts between its OA mandate and the policies of publishers where NIH grantees may submit work?

Prediction: Grantees have a contract with the NIH before entering into any contract with a publisher. Grantees will be required to meet the terms of their NIH grant, which includes self-archiving; grantees who don’t will be treated as non-compliant. If a publisher won’t agree to terms that allow the researcher to comply with his grant terms, the grantee will either have to find another publisher or violate their publishing contract, entering a game of chicken with the publisher (will publishers really sue, or otherwise retaliate against, researchers who self-archive their own work as required by law?).
Suggestion: As above. The legislation is clear: the NIH shall require that all investigators funded by the NIH submit […]. There’s no legislative authorization for exemption.

What sanctions, if any, will the agency use for non-compliance?

Prediction: The initial policy won’t detail any specific sanctions. If the policy mentions non-compliance in any way, sanctions will only be mentioned in an open-ended manner.
Suggestion: Grant disbursements should be frozen to grantees until manuscripts prepared under previous grants (under the mandatory policy) are deposited.

Will the policy apply retroactively to previous NIH grants?

Prediction: No.
Suggestion: No, although previous grantees should be encouraged to deposit.

The US has already adopted a government-purpose license allowing federal agencies to disseminate the results of the research they fund. In 2005, the NIH knew about the license but decided to rely on publisher consent instead. Will it rely on the license this time?

Prediction: No. Grantees will be required to agree to a license as part of their grant contract. (This does not “rely on publisher consent” so much as preempt it: method #2 as described by Peter here.)
Suggestion: As above, although grantees also should be encouraged to use a Creative Commons license compliant with the BBB definitions of open access (either by retaining their rights or publishing with a journal that uses CC licenses).

Will the policy allow grantees to use grant funds to pay publication fees at fee-based OA journals? The NIH is already willing to pay these fees, but it may or may not integrate this policy with the new OA mandate.

Prediction: No. The agency’s policies on permissible expenditures (for grants already awarded) will remain separate from their policies on grant distribution.
Suggestion: As above. The legislation contains no requirement to do this. However, the agency’s policies on permissible expenditures should permit it (without linking it to the self-archiving mandate, other than in the capacity that OA journals might submit the author’s manuscript on her behalf).

Will the policy require OA for raw or refined data generated by NIH-funded research? The NIH already has a data-sharing policy, but it’s not a mandate.

Prediction: No, these policies will remain separate.
Suggestion: As above. The legislation contains no requirement to do this. However, the agency’s data-sharing policy should be made mandatory, subject to the provision of adequate cyberinfrastructure and to policies protecting human-subject confidentiality.

I’ll end with a final suggestion: that university administrators and librarians prepare to help their researchers comply with the policy. It’ll take some getting used to, and the publisher FUD won’t help things (the rampant inaccuracy in reporting on the policy won’t help, either). We’ll need university counsels, research administrators, and librarians to stand up and help their faculty understand the policy.

Forward-thinking librarians will designate a staff member (such as their scholarly publishing liaison, open access director, or subject specialist for medicine) as a point of contact for faculty who need help. That staff member will familiarize himself with the details of the policy and with the mechanics of deposit, and be available to walk faculty through the process.

The NIH policy can also be a great teaching moment for campus leaders to engage their peers in a conversation about open access — and help carry momentum beyond the faculty in medicine.