Protect the NIH Public Access Mandate From the Conyers Copyright Caricature

SUMMARY: The publisher lobby is trying to undo one of the most positive things Congress has done for science: the NIH Public Access Act, which requires NIH-funded research to be made freely accessible to the public that funded it. Tendentiously misnamed the "Fair Copyright in Research Works Act" the Conyers Bill proposes to "protect" publicly funded research in exactly the same way it protects proprietary Disney cartoons or How-To bestsellers, sold for author royalty income.
    It is time for OA advocates and the general public (US and worldwide, because US OA policy has vast global implications) to make their voices heard in favor of the NIH Public Access Policy and against the Conyers Bill's Caricature of Copyright. Please consult the Alliance for Taxpayer Access on how you can help and also express your support for mandating more OA rather than less, to President Obama.
    This is also a good time to shore up the NIH Mandate with a small change that will not only increase its reach and make it a far better model for emulation worldwide, but  strengthen it against attempts like the Conyers Bill to undermine it: Specify that the research is to be deposited in the fundee's own Institutional Repository. (From there it can be automatically harvested to central repositories like PubMed Central.) The majority of journals already formally endorse OA self-archiving by authors, but most endorse it only in the author's own Institutional Repository (IR) rather than a Central (3rd-party) Repository (CR). Immune to the rival-publisher/free-rider objection, IR deposit is also distributed across all the universities in the world: This small change would also spread the adoption of institutional mandates to NIH's fundees' institutions, extending OA to all institutional research output, funded and unfunded, thus ushering in universal OA at long last.

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The publisher anti-Open-Access lobby is trying to use a time when the economy is down and the head of NIH is out to slip through a Bill that would undo one of the most positive things Congress has done for science: the NIH Public Access Act, which requires NIH-funded research to be made freely accessible to the public that paid for it.

The Conyers Bill is now trying to overturn the Public Access Act on the basis of copyright double-talk that would be ludicrous if it were not so ominous:

The published reports of publicly funded research findings are given away by their researcher-authors free for all in order to maximize their usage and impact. The Conyers Bill proposes to "protect" their work in exactly the same way it protects proprietary Disney cartoons or How-To bestsellers, produced and sold by their authors to maximize their royalty income: The tendentiously misnamed "Fair Copyright in Research Works Act" would rescind NIH's requirement that the results of the research it funds with taxpayer money should be deposited, free for all, on the Web.

The Conyers Bill's copyright arguments -- almost transparently contrived and arbitrary -- have been decisively refuted point for point by Law Professor Michael Carroll and other experts, just as all the other far-fetched, self-serving arguments marshalled by the publisher anti-OA lobby have (despite the hiring of "pit-bull" Eric Dezenhall as public-relations consultant) been repeatedly rebutted each time they were unleashed.

It is time not only for OA advocates, but the general public -- both US and worldwide (because US OA policy has vast global implications) -- to make their voices heard in favor of the NIH Public Access Policy and against the Conyers Bill's Caricature of Copyright.The Alliance for Taxpayer Access is hard at work to save the NIH Mandate; please consult them on how you can help. You can also express your support for mandating more OA rather than less, to President Obama.

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This would also be an opportune time to shore up the NIH Mandate itself with a small but important change in implementational detail that will not only increase its reach and make it a far better model for emulation worldwide, but it will also strengthen it against mischievous attempts like the Conyers Bill to undermine it:

(1) Open Access is Open Access regardless of where on the Web a paper is freely accessible.

(2) Currently, the NIH mandate specifically stipulates deposit in a Central (3rd-party) Repository (CR), PubMed Central.

(3) The majority of journals already formally endorse OA self-archiving by authors, but most endorse it only in the author's own Institutional Repository (IR) rather than a Central (3rd-party) Repository (CR). (This is because they fear that endorsing deposit in 3rd party CRs would open the door to free-riding on their content by rival publishers.)

(4) Apart from being immune to the rival-publisher/free-rider objection, IR deposit is also distributed across all the universities and research institutions in the world: That makes it a much more diffuse, hence difficult target for the publisher anti-OA publisher lobby than PubMed Central, NIH or Congress.

(5) IRs also make it possible to deposit papers as "Closed Access" rather than Open Access during any publisher embargo period. The Closed-Access paper's metadata (authors, title, journal, date, abstract, etc.) are freely accessible and searchable webwide, and link to an IR Button that allows individual users to email the author an automatic request for an individual copy for research use with just one click, which the author can in turn fulfill with just one click, almost instantaneously. Over 60% of journals already endorse immediate OA for IR deposits. The Button provides "Almost OA" for the rest, to tide over researcher needs during any embargo.

(6) Hence if the NIH deposit mandate specifically stipulated deposit in the author's IR, rather than deposit in PubMed Central, it could harvest the deposit's metadata to PubMed Central, harvest the full-text after the allowable embargo, and moot most of the copyright issues, while indirectly providing "Almost OA" even during the embargo (via the Request-a-Copy Buttons of the global network of IRs distributed across the planet).

(7) This small change in implementational detail in NIH's funder mandate would also motivate and reinforce the adoption of institutional mandates at all NIH's fundees' institutions, which would in turn help reinforce and protect the NIH mandate (from Conyers-like attacks) as well as extending it to all institutional research output, funded and unfunded.

(8) Stipulating IR deposit rather than CR deposit will also make the NIH funder mandate a model that can be emulated worldwide, globalizing the adoption of both funder and institutional mandates and helping to usher in universal OA at long last.

Stevan Harnad
American Scientist Open Access Forum