Congress Hears Debate Over Bill That Would Forbid NIH-like Public Access

Andrew Albanese -- Library Journal, 09/12/2008

• Dramatic change in copyright proposed
• Publishers say peer review has been threatened
• NIH head says policy maximizes return to the public

Publishers squared off against public access advocates yesterday in Congress, as they testified concerning the Fair Copyright in Research Works Act (HR 6845), which would essentially bar agencies of the federal government from requiring the transfer of copyright as a condition for receiving public funding.

The brief, but sweeping copyright bill would prohibit measures like the recently enacted National Institutes of Health (NIH) public access policy, which requires investigators who accept taxpayer funds to deposit their final papers in the PubMed Central repository and give the agency a non-exclusive right to offer free access within a year, though it’s unclear if the bill would directly affect the current NIH policy.

Who pays?
“Government does not fund peer-reviewed journal articles—publishers do,” Allan Adler, Association of American Publishers (AAP) VP for government and legal affairs, said in a statement following the bill's formal introduction, adding that the bill would help “preserve the incentives for peer-review publishing."
 
However, at the hearing, SPARC executive director Heather Joseph, explained that peer review was done by fellow scientists on a volunteer basis, without compensation, and that publishers’ investment was limited to the administrative task of “sending some emails.”

Another witness, American Physiological Society executive director Martin Frank, did not disagree, but said that APS spent $13 million annually to publish 14 journals, and that “sending those emails” accounted for about 20 percent of his publishing costs ($2.6 million).

NIH defense
NIH director Elias Zerhouni told members of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property that NIH spent an average of $300,000 in taxpayer money for every paper produced, and that he simply sought to maximize the return on that investment for the public, and for scientists. “This is not an issue of economic impact. This is not an issue of peer review,” he concluded. “This is about control.”

The hearing, in fact, focused almost entirely on the current NIH public access mandate. Zerhouni strongly defended the NIH mandate, saying there was “no real evidence of any deleterious impact” on publishers, and said in no uncertain terms, despite publishers' claims, the policy did not impinge on copyrights. Zerhouni said that his mandate was aimed to maximize the return on investment for the public, which funds the research, and for the scientific community.

“Destroy the market”?
In his testimony, former Register of Copyrights Ralph Oman said he didn’t “have a dog in this fight,” but clearly had a favorite breed: Oman bluntly told lawmakers that in his opinion, the NIH mandate would “destroy the market” for commercial scientific journals, and cause a “dilution” of copyright. Oman said that Congress directed the NIH to provide access “consistent with copyright law,” a phrase lobbied for and added to the NIH mandate by publishers, which the current policy does not do. Perhaps Zerhouni “misunderstood,” Oman said, noting that Congress directed him to address “public access” not “free public access.”

SPARC’s Joseph amplified Zerhouni’s testimony, saying the policy did not run afoul of copyright law, and would not cause library cancellations, because of the embargo period allowed by NIH. “After a year, scientific information is old,” she testified.

No library, she said, could cancel subscriptions and simply wait to access research a year later via NIH. She also added a moving personal note, telling the committee that her five year-old son was recently diagnosed with diabetes, and about the information she was able to access, thanks to the NIH policy.

Will publisher complaints be heard?
Anchoring the day’s testimony, Frank, a noted opponent of the NIH policy, bluntly reiterated publishers’ longstanding complaints: “The NIH has become a publisher,” Frank said, asserting the NIH was now competing with scientific publishers, taking unfair advantage of publishers’ value-added efforts in editing and peer-review, and diminishing copyright. 

He also testified that he believed in offering free access after 12 months, but not as the NIH has currently implemented, suggesting that an alternative, discretionary model, closer to the America COMPETES Act, under which the National Science Foundation offers abstracts and links to publisher content, was preferable to satisfy public access concerns.

Despite the drastic changes presaged in the bill, the hearing was not especially charged, and lawmakers on the committee (the hearing seemed sparsely attended by other lawmakers) limited themselves to polite, safe questions in their allotted time.