NIH predictions: some right, some wrong

Last week, I posted a list of predictions regarding the implementation and effects of the newly-mandated NIH public access policy. A few have turned out to be true, and a few have already proven to be at least half-wrong. (There goes my career in Cassadaga.)

My first prediction had to do with when the agency would implement the legislation. It went as follows:

  1. Opponents of public access will ask NIH to delay implementation
  2. NIH will delay, at least for a while
  3. When NIH eventually moves to implement, opponents will raise objections (the policy is premature, we’re not ready, etc.) and threaten to sue

As it turns out, #1 did happen. A day after my post, the Association of American Publishers issued a statement saying they would “urge NIH to conduct a rulemaking proceeding, with opportunity for public comment, before implementing the new policy”. A rulemaking proceeding is certainly a delay, so that much was right.

But #2 didn’t. Today, NIH issued the policy. The bill was signed on Dec. 26; the policy was issued on Jan. 11; that’s 16 days to implementation, many of which weren’t business days for the federal government. Clearly, there was no delay by NIH. And bravo for that!

#3 was partially wrong. Opponents did raise objections, but they didn’t wait for the NIH to make public movements toward implementation; they started complaining as soon as their holiday was over. I haven’t yet seen public legal threats, but they may yet be coming. The AAP‘s head of government affairs told The Scientist that

…it’s too early to say whether this mandate will prompt publisher lawsuits, but he “wouldn’t rule out the possibility that publishers might seek judicial review.” It depends on how the NIH chooses to implement this policy, he added, given that the general language of the mandate does not specify how it will be implemented in light of copyright laws*.

* Gavin’s note: Fact check, the language requires the NIH to comply with copyright law (which would have been the case even if the legislation didn’t specifically state so — because it’s the law, so NIH has to comply with it.)

My second prediction was that the grant terms would preempt the terms of publisher agreements; this was right.

My third prediction was that sanctions for non-compliance will not detailed; this was correct. (At least, that’s how I read it; it’s somewhat opaque, referring to other NIH policies. If NIH meant to communicate a sanction, it does so very indirectly.)

My fourth prediction was that the policy won’t apply to previous grantees. This was wrong: the policy applies to grantee articles accepted for publication on April 7, 2008 and thereafter — i.e., regardless of the policy’s terms at the time the grantee accepted the grant.

My fifth prediction: Grantees will be required to agree to a license for the NIH to disseminate their results as part of their grant contract. Wrong (see above). (But, NIH is also not explicitly relying upon the federal government-purpose license to which Peter alluded.)

Sixth, I predicted that NIH would not, as part of the public access policy, allow grantees to use grant funds to pay publication fees at fee-based open access journals. This was correct. (FYI: Here is the most relevant statement I can find as to allowable costs for OA fees — see the section “Publications”.)

Seventh, I predicted the policy would contain no provisions related to data sharing; this was correct. (FYI: Here is the most relevant statement I can find as to data sharing.)

I ended with an exhortation for universities to help their researchers comply with the policy. Now we see that the policy will be effective in April — that doesn’t give universities much time to ramp up their efforts. I hope the research community will pull together and help guide faculty through this change — this change which will provide so much public benefit.

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