Open Access Archivangelism

Following University of Michigan's Library's Open Access Week
Molly Kleinman has blogged Lessons from Open Access Week


Some Responses:

Question: Surely there was some discussion of Michigan congressman John Conyer's Bill HR 801 attempting to overturn the NIH OA mandate?

Comment 1: Whether one accepts the definition of the two kinds of Open Access ("gratis" and "libre") or one prefers to deny free access the honorific of "open," the fact is that we do not even have free online access (whatever we choose to call it), and that asking nonproviding authors to do more, and asking institutions and funders to mandate that they do more is even more difficult than just getting them to provide the free online access, which only 72 institutions and funders -- out of perhaps 10,000 worldwide -- are so far doing. (Without even that, it's all just a name-game.)

(Whether there is really any burning need for "re-use rights" for the verbatim texts of peer-reviewed research journal articles (as opposed to research data, or Disney cartoons) is perhaps also worth giving some more thought.)

Comment 2: For how students can help OA, see: "The University's Mandate To Mandate Open Access."

Comment 3: Before getting too caught up in the theory of the "Great Conversation," it might be a good idea to make sure free access (at the very least) is provided to its target content -- by mandating OA (for example, at University of Michigan!)

Stevan Harnad
American Scientist Open Access Forum

It is apparently more than just a semantic matter, but a cognitive one, when one gets the cognitively impenetrable idée fixe that OA = OA publishing. OA just means free online access.

"coglanglab" writes:

"coglanglab":
"there are other open-access models"

No, there are OA publishing models. OA itself just means free online access. OA ≠ OA publishing. OA is not a "model." Nor are researchers, making their own published articles freely accessible online, nor their institutions and funders, mandating it, a "model."

Maybe lexical markers will help: OA (free online access) can be provided in two different ways. OA provided through OA journal publishing is called "Gold OA". OA provided through author self-archiving of non-OA journal articles is called "Green OA."

You have unfortunately contracted the (widespread) syndrome of "Gold Fever," whose only perceived goal becomes Gold OA!

But the OA problem is not journal affordability or economic models, it is research accessibility. Gold fever conflates the two, whereas both the NIH Mandate and the HR 801's attempt to overturn it are about Green OA.

"coglanglab":
"everybody... understands that these [mandatory Green OA] policies hurt subscription-based journals"

Everybody? Not those in the best position to know, apparently, namely, the publishers whose authors have been making their articles (Green) OA the most and the longest:

Swan (2005)

"we asked the American Physical Society (APS) and the Institute of Physics Publishing Ltd (IOPP) what their experiences have been over the 14 years that arXiv has been in existence. How many subscriptions have been lost as a result of arXiv? Both societies said they could not identify any losses of subscriptions for this reason and that they do not view arXiv as a threat to their business (rather the opposite -- in fact the APS helped establish an arXiv mirror site at the Brookhaven National Laboratory)"

Mandated Green OA might or might not eventually lead to Gold OA. That is all just hypothetical conjecture and counterconjecture. What is certain is that it will lead to OA itself: free online access. And that is what the OA movement is all about and for.

"coglanglab":
"papers still need to go through peer-review and publication"

And your point is...?

NIH mandates providing Green OA to fundees' final drafts of their peer-reviewed journal articles.

"coglanglab":
"we have two models: subscription-based journals... and open-access journals"

Yes. And we have one OA -- free online access -- which can be achieved quickly and surely once Green OA is mandated. And that is what both the NIH Mandate and the Conyers Bill's attempt to overturn it are about. The rest is all distracting and profitless speculation about models for publication cost-recovery, not OA, which means free online access.

"coglanglab":
"[Harnad's] focus is not on open-access journals... so he has some stake in pointing out that there are other open-access models"

My focus is on OA, so I have a stake in pointing out that a focus on Gold OA cost-recovery models is missing the point of the NIH policy, which is about mandating Green OA. And OA is not a "model"; it is free online access to peer-reviewed journal articles.

"coglanglab":
"If these policies make the subscription-based journals less profitable, then the open-access journals presumably become more competitive"

Gold Fever, again: The purpose of the NIH policy is to provide OA -- free online access to the peer-reviewed journal articles resulting from NIH funding -- which it is doing as a matter of certainty by mandating Green OA. The rest is irrelevant speculation and counterspeculation about hypothetical sequelae.

"coglanglab":
"If the open-access policies force subscription-based publishers to raise their own publication fees or go out of business, this presumably should help open-access journals..."

If they do and if it does, then presumably it will. But this is all just hypothetical speculation. What the NIH mandate actually does, with certainty, is provide OA (free online access), remember? And access -- not speculative economics -- is what the OA is about, and for.

"coglanglab":
"if there are good reasons to believe that policies like those of NIH and Harvard harm open-access journals and subscription journals alike, then I'd like to know..."

There are good reasons to believe that universal mandated Green OA might eventually induce a transition to Gold OA and there are also good reasons to believe it might not. But what is certain is that that universal mandated Green OA will provide universal OA -- and that the Conyers Bill (HR 801), if passed, will slow or stop that.

So it might be a good idea to restrain the impulse to just keep speculating and counterspeculating about future publishing cost-recovery models and focus instead on providing universal OA while we are still compos mentis and in a position to profit (mentally) from it. And that requires defeating the Conyers Bill.

"coglanglab":
"I'm not really sure what Harnad was getting at in pointing out that some non-profit journals also support Conyers' bill..."

The opposition to Green OA mandates like NIH's comes from journal publishers who argue that it will reduce their revenues and might eventually make the subscription model unsustainable. They may be right or they may be wrong. But they definitely include both for-profit and non-profit publishers.

And, to repeat, OA is free online access to (peer-reviewed) research. OA's purpose is to solve the research accessibility problem. (Not all would-be users can afford to access all research output online today.) Gold OA cannot be mandated. (Publishers are not the fundees or employees of research funders and institutions; the money to pay for Gold OA publishing is currently tied up in subscriptions; research funds are already scarce; and authors don't like to be told where to publish, nor to be required to pay for it.) But Green OA can be mandated, and is being mandated, by NIH plus 66 further funders and institutions worldwide, with many other mandate proposals on the way.

If we can shake off the Gold Fever just long enough to reach for the Green OA that is fully within our grasp, we will have reached (at long last) the optimal, inevitable (and long overdue) outcome for research, researchers, their institutions and funders, the R & D industry, students, teachers, the developing world, and the tax-paying public who fund the research and for whose benefit the research is conducted.

Gold Fever instead focuses obsessively on publishing economics: the publishing tail, that has for too long been wagging the research dog. Green OA mandates are simply the research community taking into its own hands the matter of providing free online access to their own peer-reviewed research output. Whether the peer review service costs continue to be paid via subscriptions, or are instead paid via Gold-OA fees covered out of subscription cancellation savings is a minor matter concerning the dog's tail. We should stop letting that tail wag the dog, by focusing on mandating Green OA (and defeating Conyers-like Bills that try to oppose it), today.

Stevan Harnad
American Scientist Open Access Forum

Unfortunately, far too much of what is stated in "coglanglab's" well-meaning blog posting about Conyers' Bill H.R. 801 is simply incorrect, starting with its title:

"Congress Considers Killing Open-Access Journals"

No, the Conyers Bill H.R. 801 is not considering killing open-access journals; it is considering killing NIH's right to mandate that its fundees must deposit their published journal articles in an open-access repository -- articles that have been published, for the most part, in non-open-access journals. The Bill has nothing to do with open-access journals.

"A recent movement has led to the creation of open-access journals, which do not charge access fees. This movement has gained traction at universities (e.g., Harvard) and also at government agencies."

The "open-access journal movement" has indeed been gaining some traction, but this has next to nothing to do with either the Conyers Bill or the Harvard and NIH mandates, which have nothing to do with open-acesss journal publishing: Harvard and NIH mandate that faculty and fundees deposit their published journal articles in an open-access repository -- articles that are published, for the most part, in non-open-access journals.

"NIH recently required the researchers they fund to publish in journals which are either open-access or make their papers open-access within a year of publication."

No, the NIH did no such thing. It required the researchers they fund to deposit their published journal articles in an open-access repository -- articles published, for the most part, in non-open-access journals -- and to make those deposits openly accessible within a year of publication."

Fortunately for the for-profit journal system, Congress is considering H.R. 801, which would forbid NIH and other government agencies from implementing such policies."

The issue has nothing to do with for-profit vs. nonprofit journal publication. The publishers lobbying against the NIH policy include not only for-profit publishers but nonprofit publishers such as the American Chemical Society and the American Physiological Society.

"The conceit of the bill is that NIH is requiring researchers to give up their copyrights, though of course researchers hardly ever -- and, as far as I know, never -- retain the copyrights to their works. Publishers require the transfer of the copyright as a condition of publication."

The "conceit" of Conyers Bill H.R. 801 is that the government should not be allowed to require researchers to make their research open access even when the research has been supported by public funds because that could interfere with the publishers' right to make a return on their investment.

(The Conyers Bill will fail because the public investment in research is incomparably greater than the publisher's, because the government's contractual conditions on that funding predate any agreement the fundee makes with the publisher, and because repository deposit can be mandated even without requiring that access to the deposit be immediately made open access: The repositories' semi-automatic "Request a Copy" Button can tide over would-be users access needs during any embargo.)

Stevan Harnad
American Scientist Open Access Forum

Reply to: Conyers, John (2009) A Reply to Larry Lessig. The Huffington Post. March 6, 2009.

Congressman John Conyers (D. Mich) is probably sincere when he says that his motivation for his Bill is not to reward contributions from the publishers' anti-OA lobby: He pretty much says up front that his motivation is jurisdictional.

Here are the (familiar, and oft-rebutted) arguments Rep Conyers refloats, but I think he is raising them less out of conviction that they are right than as a counterweight against the jurisdictional outcome he contests because it is his committee that he feels ought to have decided the outcome of the NIH Public Access Bill. (By the way, the original Bill was anything but secret as it made its way through the House Appropriations Committee, then the House, then the Senate, as Peter Suber's many OA News postings archived along the way will attest.)

Rep. John Conyers:
"[O]pponents [of mandating Open Access to publicly funded research] argue that, in reality, it reverses a long-standing and highly successful copyright policy for federally-funded work and sets a precedent that will have significant negative consequences for scientific research."

(1) Not a Copyright Policy: There is a longstanding federal policy of not allowing federal employees to transfer copyright for research that they do as part of their paid job. It would be quite natural, and no "reversal" at all, to extend this to federal fundees as well.

(2) A Self-Archiving Precondition: But in fact the NIH Public Access Policy does not even do that! It doesn't extend or reverse anything with respect to copyright. It simply requires NIH fundees to make their published articles OA as a (prior) condition of receiving NIH funding, by self-archiving their final drafts free for all online.

(3) Evidence of Positive Consequences: The actual consequences of self-archiving to date have all been positive ones, for research progress: enhanced visibility, access, uptake, usage, applications and impact for research findings.

(4) No Evidence of Negative Consequences: The "significant negative consequences" to which Mr. Conyers alludes (on the prompting of the publishing lobby) are the hypothetical possibility -- for which there so far exists no actual evidence whatsoever -- that OA self-archiving will cause subscriptions (largely institutional) to be cancelled catastrophically, making them unsustainable as the means of covering the costs of peer review.

(5) Subscription Collapse Would Itself Free the Institutional Windfall Savings to Pay for Peer Review: But the answer to that hypothetical conjecture is that if and when institutional subscriptions were ever to collapse unsustainably, the costs of peer review would be paid for out of the same institutions' self-same subscription cancellation savings -- per outgoing published article instead of per incoming subscribed journal (and with a lot of money saved all round, for products and services that would no longer need to be provided or paid for if the market for subscription was no longer there, such as the print-on-paper edition and its distribution, as well as the online edition): The premise of subscription collapse, after all, is that users will prove so satisfied with the final peer-reviewed drafts self-archived worldwide by their authors under global self-archiving mandates, that there will no longer be any market for subscriptions to the publisher's print or PDF version; hence only the peer review itself would be left to pay for out of all the windfall cancellation savings.

(6) Peer Review Alone Costs Far Less: Nor are those peer-review costs high, since not only do researchers give their papers to publishers for free to sell, but researchers also perform the peer reviewing for publishers for free! So all that's left in the online age is a competent specialist (editor) to choose the peer-reviewers and to adjudicate the referee reports and revisions to ensure they meet the journal's quality standards, plus software to track referee reports, send reminders, and manage the correspondence with the referees. Once it is found acceptable for publication, the author's final draft is simply certified as having been published by that journal.

Rep. John Conyers:
"These opponents argue that scientific journals expend their own, non-federal resources to manage the peer review process, where experts review academic publications. This process is critical because it provides the quality check against incorrect, reckless, and fraudulent science and furthers the overall quality and vigor of modern scientific debate. Journal publishers organize and pay for peer review with the proceeds they receive from the sale of subscriptions to their journals, thereby adding considerable value to the original manuscripts of research scientists."

All true. But no argument at all against Open Access self-archiving mandates! As long as subscriptions remain sustainable to cover the peer review costs, along with all the other products and services that are currently bundled in with it (producing and distributing the print-on-paper edition as well as the online PDF edition), things continue exactly as they do now (and as they have done for over a decade in the few fields, such as high energy physics, where OA self-archiving has been going on spontaneously at close to 100% levels already with no detectable effect on subscriptions).

And if ever subscriptions fail, peer review will be paid on the OA publication-fee model that some OA journals such as PLoS and BMC already use today -- but paid for out of the universal windfall cancellation savings, instead of out of extra funds, poached from somewhere else (often scarce research funds themselves!), as now.

In other words, the ominous talk about a threat to peer review is patent nonsense.

Rep. John Conyers:
"The policy Professor Lessig supports, they argue, would limit publishers' ability to charge for subscriptions since the same articles will soon be publicly available for free. If journals begin closing their doors or curtailing peer review, or foist peer review costs on academic authors (who are already pay from their limited budgets printing costs in some cases), the ultimate harm will be to open inquiry and scientific progress may be severe. And the journals most likely to be affected may be non-profit, scientific society based journals."

The reason this is patent nonsense is that it invokes catastrophic subscription cancellations as the threat, but completely ignores the fact that the ones who are saving money on the incoming journal subscription cancellations are the researchers' institutions -- the very same ones who would then have the money to pay for the (far lower) costs of peer review alone for their own researchers' outgoing articles' peer-review costs, after the hypothetical collapse of subscriptions.

Regardless of whether journals are for-profit or nonprofit, it is clear that research is not an activity that is being funded and conducted in order to provide revenue for those journal publishers! The journals are produced to provide a service to research, researchers, and especially the public who funds the research and for whose benefit the research is being conducted -- a service currently being paid for in full by institutional subscriptions. If and when the only publisher service there is a market left for is peer-review alone, and not the other products and services it is co-bundled with today (and has been ever since Gutenberg), then the peer review will simply be paid for up front, and there will be plenty of saved money out of which to pay for it.

To try instead to keep holding back OA, now that the online medium has made it not only possible, but optimal and inevitable -- and to hold OA back despite its demonstrated direct benefits to research, just in order to indemnify publishers' current subscription revenues and modus operandi against hypothetical risk is rather like trying to keep coal-fed steam engines or horse-drawn carriages in service in order to insure the revenues of stokers and the hay industry -- except it's more like trying to do that with hospital ambulances. (And that's no less true when it is "Learned Society Publishers' 'Good Works'" that are being invoked as the justification for holding up the ambulance than when it's just commercial publishers' purported greed.)


Reference

Berners-Lee, T., De Roure, D., Harnad, S. and Shadbolt, N. (2005) Journal publishing and author self-archiving: Peaceful Co-Existence and Fruitful Collaboration.


Stevan Harnad
American Scientist Open Access Forum

Lawrence Lessig (LL) has just written "John Conyers and Open Access," a trenchant and useful critique of the Conyers Bill's attempt to overturn the NIH OA mandate. But there is one crucial error in LL's critique: It conflates (1) (Gold) OA publishing (in OA journals) with (2) (Green) OA self-archiving (of articles published in conventional non-OA journals).

What the NIH is mandating is Green OA, not Gold OA. So what the Conyers Bill is trying to overturn is Green OA self-archiving mandates (of which there are 65 others, besides NIH's), not Gold OA publishing mandates (of which there are none).

It is hence somewhat misleading to write in this context, as LL does, that

"Open access journals... have adopted a different publishing model... [and] NIH and other government agencies were increasingly exploring this obviously better model for spreading knowledge."

What both NIH and FRPAA are and were exploring is mandating Green OA as the better way to spread knowledge. Once Green OA becomes universal, we already have OA. Whether or not -- and if so when -- this will in turn lead to a transition to the Gold OA publishing model is another question, and a hypothetical one. And it is certainly not what NIH is mandating and the Conyers Bill is attempting to unmandate.

It is true, of course, as LL states, that "[p]roprietary publishers, however, didn't like it" [i.e., the NIH OA Mandate], but not because Gold OA was being mandated: Publishers would be perfectly happy if NIH were foolish enough to take some of the scarce funds it uses to support research itself and redirect them instead to paying publishers for Gold OA publishing fees (especially at today's going rates). (In fact, I believe publishers even did some lobbying in that direction, trying to persuade NIH to mandate Gold OA instead of Green OA).

But what it was that publishers were actually unhappy with was mandatory Green OA self-archiving. The majority of journals have already formally endorsed elective Green OA self-archiving by their authors, because of the growing pressure from the worldwide research community for OA. But only about 10-15% of authors actually bother to take them up on it, by self-archiving of their own accord, whereas Green OA mandates by funders and institutions will eventually raise that percentage to 100%.

And that's the real reason publishers are lobbying against Green OA mandates: They feel it might one day make the subscription/license model unsustainable, and may hence eventually induce downsizing and transition to the Gold OA model for the recovery of the (much reduced) costs of publication.

And it might. But that is all just hypothetical. Treating the actual NIH mandate (and the Conyers Bill's attempt to overturn it) as if it were a mandate to convert to Gold OA publishing (rather than just a mandate to self-archive papers published in non-OA journals, so as to make them [Green] OA) not only mischaracterizes what it is that NIH is actually mandating, but it upgrades a mere hypothetical conjecture into what then looks as if it were an actual, current, direct effect!

Talking about Green OA as if it were tantamount to making subscription/license publishing unsustainable is actually playing into the hands of the anti-OA lobby. This doomsday scenario has often been used as a scare-tactic by anti-OA publishers themselves (sometimes with temporary success) to blur the difference between Green and Gold OA as well as the difference between hypothesis and reality. But in most cases this only succeeds as a temporary delaying tactic. Eventually the illogic is reversed, and the optimal and inevitable prevails.

I think it is both a factual and a strategic mistake for the pro-OA lobby to (inadvertently) reinforce this doomsday tactic on the part of the anti-OA lobby by conflating Green and Gold OA along much the same lines, especially with respect to what the NIH mandate is actually mandating (and even if one's heart is really with Gold OA!).

Yes, universal Green OA might eventually lead to a transition to Gold OA. Or it might not. But that is not what the NIH mandate is about, or for. And it certainly is not what the NIH is mandating.

The NIH is mandating that its fundees provide (Green) OA, now, not in some hypothetical golden future, so that all research, researchers, their institutions and funders, the R&D industry, teachers, students, the developing world, and the tax-paying public for whose benefit most research is being funded and conducted -- rather than, as now, just those who can afford subscription/license access to the publisher's proprietary version -- may access, read, use, apply and build upon the research that research funders fund, research institutions conduct, and tax-payers' money pays for.

Research is not funded or conducted to provide revenues to the publishing industry. Publishers are service-providers for the research community and they are currently being paid in full through subscriptions. Perhaps one day they will instead be paid through publication fees, perhaps not. That is not what is at issue with the NIH mandate: OA is.

The publishing tail is trying to wag the research dog with the Conyers Bill, by treating research as if it were no different from Disney cartoons. The tax-paying public needs to reassert mastership.

[See also James Boyle's brilliant spoof on the Conyers Bill in the Financial Times: "Misunderestimating open science."]

Stevan Harnad
American Scientist Open Access Forum

SUMMARY: NIH's Acting Director, Raynard Kington, writes that "NIH [is] open to closer collaboration with institutional [repositories]... [D]irect feeds from [institutional repositories (IRs) are] worthwhile [but] raise important technical and logistical challenges..."
    All technical and logistical challenges to designating Institutional Repositories (IRs) as NIH's preferred locus of direct deposit (followed by "direct feed" to PubMed Central (PMC)) can be successfully met (most already have been):
(1) The SWORD transfer protocol has already solved the problem of automatically exporting IR deposits to other repositories.
(2) "Author approval": Authors are mandated by NIH to deposit, and NIH specifies the locus of deposit.
(3) "Copyright permissions": If copyright is not an issue with PMC deposit, it is even less of an issue with direct institutional deposit in the fundee's own IR.
(4) "Quality control": The IR deposit can be exported by "direct feed" (via SWORD) to PMC, where exactly the same quality controls can be performed as are now being performed by PMC.
(5) "Formats for electronic transfer": The SWORD protocol does the electronic transfer, and the format for deposit of the author's final, refereed, revised draft is exactly the same.
    The benefits of NIH/institutional collaboration on direct feeds will be enormous, and will far exceed the current reach of the NIH mandate. This should also be cited in the defense of NIH's historically invaluable public access policy against the Conyers Bill's attempt to overturn it.

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In his "Analysis of Comments and Implementation of the NIH Public Access Policy," Dr. Raynard Kington, Acting Director, National Institutes of Health (NIH), writes that

"direct feeds from [institutional repositories (IRs) are]... worthwhile... but... raise important technical and logistical challenges regarding author approval, copyright permissions, quality control, and formats for electronic transfer. The NIH remains open to closer collaboration with institutional [repositories] and will consider this issue as the Policy matures."

It is virtually certain that all technical and logistical challenges to designating Institutional Repositories (IRs) as NIH's preferred locus of direct deposit (followed by "direct feed" to PubMed Central (PMC)) can be successfully met (and most already have been: see below). The benefits of NIH/institutional collaboration on direct feeds will be enormous, and will far exceed the current reach of the NIH mandate (which is now restricted to the 80,000 articles a year resulting from NIH funding, no more, no less).

The NIH mandate touches the institutions of every one of NIH's fundees. If the NIH mandate preferentially encourages its fundees to deposit their NIH-funded output in their own respective IRs (with direct feed to to PMC therefrom, instead of direct deposit in PMC, as now), it will also motivate their fundees to deposit -- and motivate their fundees' institutions to mandate the deposit of -- the rest of their institutional output in their IR too, not just the NIH-funded fraction of it. Not so if the 80,000 NIH articles must be directly deposited institution-externally (in PMC): That has the exact opposite effect, competing with and complicating, hence demotivating institutional deposits and mandates. (And we must not forget that the institutions are the universal providers of all research output: funded and unfunded, across all disciplines.)

The "technical and logistical challenges" for "direct feeds" from IRs to PMC have already been largely met:

(1) The SWORD transfer protocol has already solved the problem of automatically exporting IR deposits to other respoitories.

(2) "Author approval" is not a problem at all: Authors are mandated by NIH to deposit, and NIH specifies the locus of deposit. Currently that designated locus is PMC. The recommendation here is that the preferred locus of deposit should instead be the author's IR, with the deposit then automatically ported by "direct feed" (via SWORD) to PMC. (Institutional deposit will in fact simplify deposit for authors, increasing their motivation to comply with the NIH mandate.)

(3) "Copyright permissions" are not a problem either: Authors are mandated by NIH to deposit and NIH specifies the locus of deposit. If copyright is not an issue with PMC deposit, it is even less of an issue with direct institutional deposit in the fundee's own IR. (Publisher embargoes can be -- and are -- implemented by IRs just as they are by PMC.)

(4) "Quality control" is not a problem either. Authors are mandated by NIH to deposit their final, refereed, revised draft, and NIH specifies the locus of deposit. The IR deposit can be exported by "direct feed" (via SWORD) to PMC, where exactly the same quality controls can be performed as are now being performed by PMC. (The IR direct-deposit protocol can easily be made to conform to the PMC direct-deposit protocol: they are almost identical already.)

(5) "Formats for electronic transfer" is not a problem either. The SWORD protocol does the electronic transfer, and the format for deposit of the author's final, refereed, revised draft is exactly the same.

It is very welcome and timely news that NIH's Acting Director is "open to closer collaboration with institutional archives." The sooner a collaborative deposit policy, with IR deposit and direct feed to PMC can be adopted and announced, the sooner its potentially enormous knock-on effects will begin to make themselves felt in helping to wake the "slumbering giant" -- the US and global network of universities and research institutes, not only the NIH-funded ones, but all of them: the universal providers of research, worldwide -- to create their own IRs (if they don't have them already) and to mandate the deposit of all of their own research output into them, not just NIH-funded research.

This global enabling effect of the NIH mandate for accelerating and facilitating universal OA should also be cited in the defense of NIH's historically invaluable public access policy against the Conyers Bill's attempt to overturn it.

(And the other research funding councils worldwide, too, should be encouraged to consider the enormous potential OA gains -- at no loss -- from stipulating IR deposit rather than institution-external deposit in their own OA policies as well.)

Stevan Harnad
American Scientist Open Access Forum

[As the Conyers Bill in the US seeks to undo the good done by the NIH Public Access Policy, here is some sunnier news from Spain. It is no exaggeration that open access to health research advances research progress and saves lives, whereas the Conyers Bill seeks to protect publisher access to profits at public expense. Iberia has different priorities. Many thanks to Eloy Rodrigues and Alicia Lopez Medina for posting this information about Spain's Draft Open Access Law on the American Scientist Open Access Forum.]

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Draft of the National Law of Science in Spain includes Open Access.

A draft of the National Law of Science in Spain has been released and includes a chapter dedicated to Open Access.

Article 33 of the draft states (translated from Spanish):

1. The agents of the Spanish System of Science and Technology will promote the development of institutional or aggregated repositories to allow open access to the publications of their researchers

2. The researchers, whose research had been granted with public funds shall make publicly available a digital version of their own final draft (peer-reviewed and accepted for publication) as soon as possible, but not later than 6 months after the official date of the publication of this final draft.

3. This final version will be made publicly available in open access repositories, disciplinary or institutional.

4. The public digital version deposited in the repositories can be used in the evaluation processes by Public Administrations.

The inclusion of Open Access in this document represents an important and significant commitment in support of Open Access and repositories in Spain.

The draft document is available online from https://lcyt.fecyt.es/

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

See this letter from 46 law professors and specialists in copyright law for a brilliant defense of the NIH Green OA Self-Archiving Mandate against the absurd charges of the publisher's lobby and its attorneys in the Conyers Bill.

I generally avoid the legal aspects of OA because I can see so clearly that 100% Green OA can be quickly and easily achieved without having to waste a single minute on legal obstacles (via the IDOA Mandate). But this is such an articulate and rigorous set of legal arguments that I could not resist posting them further just for the delight of the ineluctable logic alone.

Read, enjoy, admire, and rest assured that whether via the legalisticroute or just good, practical sense, OA will prevail. It is optimal, inevitable, and irresistible. The anti-OA lobby is wasting its money in trying to invoke law or laws to stop it; at best, they can just buy a bit more time. (But if universities and funders opt directly for IDOA mandates, that will deny the anti-OA lobby even that.)

Stevan Harnad
American Scientist Open Access Forum

PS Unless I am mistaken, one detects the unseen legal hand and mind of Peter Suber, plus a goodly dose of the seen hand and mind of Michael Carroll in the drafting of this legal and logical masterpiece.

Fred Friend (JISC) wrote:

"Under your Plan B, what would stop publishers increasing the Closed Access embargo period to two years?"

The question is a good one, a natural one, and a pertinent one:

(1) "Plan B" is a contingency plan, in case the Conyers Bill should defeat the current NIH OA Policy (i.e., "Plan A").

(2) If the Conyers Bill were to pass, not only Plan A but all protection from publisher embargoes would be dead in the water (hence embargoes could in principle be made infinitely long).

(3) Plan B is accordingly designed to free the NIH Mandate from any dependence at all on publishers to decide when research (postprints) may be deposited.

(4) Plan B is to make all research postprints OA as soon as they can be, but to require that the actual deposit of all postprints in authors' Institutional Repositories be made immediately upon acceptance for publication, and to rely on almost-OA (via the semi-automatic "email eprint request" Button) for deposits that for any reason cannot be made OA immediately.

(5) With Immediate-Deposit mandated universally, "Almost-OA" (via the Button) serves research and public needs almost as well as OA during any embargo period.

(6) Universal Deposit mandates, plus the resulting enormous growth in usage and impact via OA and Almost-OA, will make it harder and harder for publishers to justify embargoes, while at the same time making embargoes virtually ineffectual:

(7) Hence embargoes will die their natural and well-deserved deaths once universal Deposit (Plan B) is mandated, by all research institutions and funders, worldwide, paving the way for full, immediate OA.

(8) It is far less clear whether Plan A [Delayed, Post-Embargo Deposit] can or will be universally adopted, by all research institutions and funders, worldwide -- nor whether, even if it were, it would ever lead to immediate-OA.

(9) Even with the Button, Delayed-Post-Embargo Mandates cannot provide immediate almost-OA. (NIH requires immediate "submission" but it is deposited -- in PubMed Central -- only after the embargo.)

(10) Hence it is in fact Plan A that locks in publisher embargoes, not Plan B!

Stevan Harnad
American Scientist Open Access Forum