Open-Access Research Helps Public Without Hurting Publishers, House IP Hears

House Judiciary Committee Chairman John Conyers, D- Mich., criticized the Appropriations Committee for inserting a copyright provision in the bill “summarily, unilaterally and probably incorrectly” without consulting House Judiciary. He said he has received “zero” response from Appropriations after several requests. Subcommittee Ranking Member Howard Coble, R-N.C., said he wasn’t yet sponsoring Conyers’ Fair Copyright in Research Works Act (HR-6845), which would repeal the NIH policy (WID Sept 11 p5), because he had heard that some countries imposed similar requirements without violating IP treaty obligations.

Nothing less than scientific progress itself is threatened if Congress repeals the policy, said NIH Director Elias Zerhouni. PubMed Central gets two million visitors a day, only a small proportion scientists, he said. The site provides comprehensive links between articles on similar subjects that researchers may never know about otherwise, Zerhouni said. “To make progress, we will need to interconnect all the discoveries that we are making,” he said, showing slides on breakthroughs enabled through the site. NIH has found no harm to publishers’ bottom lines from the one-year policy, Zerhouni added, since hundreds of specialty publishers already were voluntarily making their content free after a year.

In biomedical research, “information after one year is old” and free access won’t undercut libraries’ need for paid subscriptions, said Heather Joseph, the executive director of the Scholarly Publishing and Academic Resources Coalition and a former publisher. The American Society for Cell Biology’s revenue has grown since 2001, when it started adding all journal articles to PubMed Central two months after publication, she said. Holding back tears, Joseph recounted her young son’s diagnosis of diabetes and her finding an article online on continuous glucose monitors, “solely because the NIH policy was in place.”

NIH apparently misread the relevant section of the appropriations bill in adopting the one-year policy, which doesn’t require “free” access, said George Washington University law school lecturer Ralph Oman, who used to run the Copyright Office. “Congress doesn’t waste its breath” in legislation, and the appropriations bill clearly tells NIH it must apply the policy “consistent with copyright law,” he said. NIH read that limitation as “surplusage” to be ignored, Oman added.

In setting itself up as a publisher, NIH is taking advantage of the “heavy lifting” of actual publishers that spend thousands of dollars on peer review for each article they accept, said Martin Frank, executive director of the American Physiological Society. NIH could have simply provided summaries or links to articles elsewhere under the approved America Competes Act, he said. Publishers’ studies suggest that smaller journals will fold, and that would leave authors fewer places to publish and possibly raise the fees that journals charge authors to publish, Frank said.

Who Really Pays for Peer Review?

The agency already budgets for peer review -- usually $3,000 an article and $80 million to $100 million a year -- in grants if applicants ask, Zerhouni told Subcommittee Chairman Howard Berman, D-Calif. Frank replied that the full grant is usually “dried up and gone away” by the time a manuscript is finished, so review costs come out of publishers’ pockets. Asked by Coble if there’s an “inherent problem” with the government running peer review and article selection, Oman said he has a “healthy distrust for the hairy snout of government” and NIH can’t give “detached evaluations” without substantially enlarging its staff. Conyers asked him to use “kinder language” about NIH, so Oman suggested NIH-run review would be like “lipstick on a pig.”

Publishers that already had provided content free after a year were shaken by the NIH mandate because they lost their flexibility, Frank said. “Should I not succeed [in retaining subscriptions], I can always roll it back” to a longer period before opening access. Told by Joseph that the cost of peer review is “sending an e-mail” to volunteer reviewers, Frank said about 20 percent of his group’s $13 million publishing budget goes to that review -- an online submission and review system, editorial selection of reviewers and management.

Zerhouni cited NIH’s $24 billion funding for research for the public benefit, and the risk of “fragmenting information.” He said, “You wouldn’t want to make Google illegal to preserve newspapers.” Referring to the legal problems of Google’s YouTube, Berman replied, “You may be misjudging the committee’s feelings … This is a slippery slope you're going down here.” But he also said that “NIH is not Napster.” Frank admitted that publishers pushed for a one-year policy in response to the six months proposed by Joseph’s group. But he added that in some fields, articles’ “shelf life” is far longer -- regular citations may continue for seven to 10 years in ecological-research studies, for example.

A proposal by Rep. Bob Goodlatte, R-Va., for NIH to post only unreviewed articles to PubMed Central, with a disclaimer, gained little support. Oman said the idea “can’t be that off the wall” because post-publication review is gaining ground in scientific circles. Frank said it would be “disastrous” for NIH to put its “imprimatur” on such articles, even with a disclaimer, since scientific journals reject nine submissions in 10. Zerhouni agreed.