NIH-like Policies To Be Blocked?

Publishers squared off against public access advocates September 11 in Congress, as they testified concerning the Fair Copyright in Research Works Act (H.R. 6845), which would bar federal agencies from requiring the transfer of copyright in order to get public funding.

The bill would prohibit measures like the recently enacted National Institutes of Health (NIH) public access policy, which requires taxpayer-funded researchers to deposit their final papers in the PubMed Central repository and give the agency a nonexclusive right to offer free access within a year. It's unclear if the bill would nix the NIH policy, but lawmakers agreed shortly afterward they wouldn't move on the bill this year.

“Government does not fund peer-reviewed journal articles—publishers do,” Allan Adler, Association of American Publishers (AAP) VP for government and legal affairs, said, adding that the bill would help “preserve the incentives for peer-review publishing.”

However, at the hearing, SPARC (Scholarly Publishing and Academic Resources Coalition) executive director Heather Joseph explained that peer review was done by fellow scientists on a volunteer basis and that publishers' investment was limited to “sending some emails.”

American Physiological Society (APS) executive director Martin Frank said that “sending those emails” accounted for about 20 percent ($2.6 million) of his $13 million publishing costs.

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. He said the issue was not about economic impact or peer review: “This is about control.”

In his testimony, former register of copyrights Ralph Oman bluntly said 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 publishers got added to the NIH mandate.

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.

Frank, a noted opponent of the NIH policy, asserted that 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 free access after 12 months could be implemented differently, with abstracts and links to publisher content.