Congress Backs NIH Access Plan

After two ineffective years of a National Institutes of Health (NIH) policy that requested researchers deposit copies of their final papers in PubMed Central (PMC), both the U.S. House of Representatives and the Senate have included provisions in their 2008 appropriations bills that would require deposit of NIH-funded researchers’ final papers within one year of publication.

While public access advocates hailed the policy, passed by the House July 19 and headed for a Senate vote as of press time, publishers remain bitterly opposed to the policy and have seemingly laid the groundwork for a legal challenge.

Unlike in 2004–05, when the NIH first attempted to require public access to the research it funds only to see that policy gutted at the 11th hour under heavy lobbying from publishers, the process to draft and implement this policy took place largely behind the scenes.

Publishers, however, introduced a new argument, charging that the policy conflicts with the rights of copyright owners. Indeed, language added in the final draft of the House bill requires the NIH policy be applied “in a manner consistent with copyright law,” setting up a potential challenge.

Brian Crawford, chair of the Association of American Publishers’ Professional and Scholarly Publishing Division Executive Committee, told LJ that the “mandatory deposit of copyrighted articles in an online government site for worldwide distribution is in fundamental, inherent, and unavoidable conflict” with the rights of copyright holders.

Although experts say the NIH is within its legal rights to require public access as a condition of receiving funds, sorting out the copyright issue could delay implementation. With Congress taking note of the previous policy’s ineffectiveness—voluntary deposit in PMC lagged at around five percent last year—Heather Joseph, executive director of SPARC (Scholarly Publishing and Academic Resources Coalition) suggested there was enough momentum in Congress to hold firm.

Meanwhile, some NIH supporters raised concerns about the new policy, questioning whether mandating deposit in a single government database with a one-year embargo would be effective in an increasingly distributed Internet age, where open access publishing and author self-archiving are also making strides.