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MLA's Code of Ethics

What I Said About Public Access at the ER&L Conference

I'm not planning to jump on the bandwagon of the SPARC advocacy machine's drive to defeat the Fair Copyright in Research Works Act (what an abysmally named bill!)  It's not that I'm necessarily opposed to the NIH Public Access Policy or in favor of HR 801, just that I think that there is much less to the former and a bit more of interest in the latter, than the OA lobby proclaims.

At UCLA, I referred to this Santayana quote, which I used to use for the motto on my blog:

Skepticism is the chastity of the intellect, and it is shameful to surrender it too soon or to the first comer.

I think of skepticism as a discipline, and part of that discipline is listening very critically to the arguments of the people whose conclusions you agree with, and very generously to the people whose conclusions you are inclined to oppose.  It keeps you intellectually honest.  There hasn't been nearly enough of that in this debate.

SPARC has been tremendously successfully in equating support for the NIH Policy with support for open access, and vice versa.   A blog post at Public Knowledge refers to HR 801 as an Anti-Open Access Bill and this morning I received an invitation to join a Facebook group called "Oppose Bill HR 801: Repealing Open Access to NIH-funded Science."

But it is certainly possible to be very supportive of providing free access to peer reviewed literature and still think that the NIH Public Access Policy is lousy legislation.   An article in the latest issue of the Journal of the Medical Library Association points out that from a sample of articles taken from that database in 2005, 26% were freely available, with 40% of those coming from society publishers.  As of this morning, there are 1,806,192 articles freely available on the Highwire Press site -- the full published articles, I might emphasize, not just the final manuscript version.  And it is worth remembering that of the 80,000 articles per year that the proponents of the NIH Policy claim are "freed," a significant proportion of those are published in journals that are making those articles freely available in any case.

The people who are leading the fight against the NIH Policy are clearly and demonstrably not opposed to making peer reviewed research articles (not just those funded by NIH) freely available, and I assume that the people leading the charge against them know that.

So if the fight isn't really about public access, what is it about?  That's easy, if one is paying attention.  It's about control.  Who should get to decide the terms under which articles are made freely available? 

This is most clearly demonstrated if one bothers to actually read the testimony from the original hearings from last September (when it was HR 6845), along with Heather Joseph's follow-up letter to Representative Berman.  In his testimony, Marty Frank, who has been the most prominent voice in opposition to the NIH Policy, points to the freely available articles on Highwire and elsewhere as evidence that journal publishers are not opposed to making articles freely available.  But he argues that a one sized solution is not appropriate, that different journals have different needs, and that the interests of science are best served if we leave it up to the journal publishers (and here he is speaking primarily about the scholarly societies) to set their own embargoes and establish their own terms.  He claims that the NIH policy is unwarranted government interference.  In her letter to Berman, Joseph addresses this directly.  While it is true, she says, that many of the Highwire Journals have embargoes of 12 months or less, "There is no requirement for them to do so and therefore no guarantee that access will continue to be provided permanently."

So the argument isn't about making articles freely available -- Joseph and Frank agree on the importance and necessity of doing that.  It's about whether or not we should enable the government to dictate the terms under which this happens.  But this is not the way that SPARC has framed the public debate.

For me, personally, I'm somewhat more inclined to give the government the edge here.  Having started my career at the National Library of Medicine and being steeped in the history of that amazing institution, if I had to choose between relying on NIH/NLM to maintain the permanent archive of research publishing or relying on independent organizations, worthy though they might be, I'd go with NLM.  But that doesn't mean that I must therefore think that the NIH Public Access Policy, as currently implemented, is the best way to do that.

And this brings us to HR 801.  The NIH Policy relies on the fact that publishers are going to continue to manage the peer review process.  This is implicit in the whole thing.  "Yes, we want taxpayers to have access to the results of government funded research, but only after the reports of that research have been vetted by a non-governmental organization."  The independent peer review process is essential to the philosophy underpinning the NIH Policy, and it depends on the publishers continuing to manage that process.

Now whether you think that the mandate creates a high or low risk to the financial viability of any individual publisher, it clearly injects some risk.  And NIH's position appears to be that "we (the government) will now require publishers to accept some additional financial risk, while continuing to provide the services of peer review and in exchange for that, we will give you....?"  Nada.

The response to that is HR 801.  The message here is, "If you are going to require us to continue to provide peer review to underlie the scholarly publishing system, then it isn't fair for you to make publicly available versions of our articles available to compete with us.  This interferes with our right to control the distribution of our copyrighted material, as provided to us under copyright law."  Note that the claim here is not that the publishers have a copyright interest in the author's manuscript version, but that by putting up a competing version, NIH is infringing on their right to control the distribution of their version of the article to which they clearly do hold the copyright.  I have no idea if that claim would hold up in court, but it is a different argument from the one that the opponents of HR 801 have been so busily dismissing.

This certainly is an important issue of public policy.  But it isn't about making articles freely available.  It's about the role of government in the scholarly publishing process and whether or not the government should have the right to take advantage of independently funded peer review without providing anything in return.  It's about whether or not the relationship between government, the research community and publishers should be adversarial or collaborative (as John Willinsky suggests it needs to be at the end of his recent article in PLoS).

That would be a discussion worth having.


Marcus Banks

The most cogent objection to HR801 (and its 2008 incarnation) is that it significantly changes copyright law as an over-reaction to the NIH Policy.

The NIH Policy requires grant recipients to exercise their copyright over their article in a certain way, as a condition of receiving the grant in the first place--namely, they must agree that the article shall eventually live in PubMed Central. It doesn't grant or take away any new rights under copyright. HR801 grants significant new powers to publishers, with far wider implications than might be first apparent.

This is my reading of it all, based on admittedly biased pro open access sources.

But it seems like a fair critique. After all, the NIH Policy is a threat to traditional publisher business models (whatever librarians or the NIH might say.) So savvy publishers have every right to go to Congress and fight back. If we grant that the NIH Policy shifted power too much toward the government and away from publishers--as your analysis suggests, and I agree with--then it's only logical that the publishers want to swing the pendulum back.

What I'd like to see is this, although I don't know if it's legally possible: an enforceable provision that the embargo period will remain at 12 months, for the next 5 years at least. For we all know that librarians and other OA advocates want a shorter embargo, whatever they might say. This prospect rightfully galvanizes the publishers, and bills like HR801 are the result. But a firm guarantee that the embargo period will persist would go a long way towards finding that ever so elusive balance between publishers, funders, and librarians.

Looming in the back of my mind, though, is the reality that the entire system of communicating scholarship is changing. Will the article still have primacy in 5 years? Or will it be the skillfully annotated wiki post, with every revision carefully documented and preserved? Probably the article, still, but its glory days will be waning.

This is really the big threat, for publishers and librarians: the very fundamentals of scholarship are changing. I predict that these arguments over the NIH Policy will seem very quaint someday.


One particular annoyance to me is when publishers talk about how they are "providing" peer review. No, they aren't -- they are facilitating it, they are arranging it, but it is actually being provided by volunteers. I do think some neutral body needs to make sure peer review happens, but I think publishers tend to take too much credit. I doubt that most in Congress understand how peer review really works.

T Scott

While it is important to acknowledge that the reviews themselves are done by volunteers, managing the process is not a trivial matter and is also often undervalued. Consider -- when I was the editor of JMLA, I spent some 8-10 hrs per week "facilitating" the review process; that is, taking each manuscript from receipt through acceptance or rejection. The largest number of manuscripts I received in any single year was 76. For a small society journal, it is possible to manage this with volunteer effort (although some JMLA editors have relied on administrative support, whether paid for by MLA or supplied through their institution). But even at 10 hrs a week for 76 manuscripts a year I never quite felt that I was giving it all of the attention that it deserved.

Now consider a much robust publishing operation that is dealing with thousands or tens of thousands of manuscripts per year. Of the tasks that I performed, at least half to two-thirds are typically performed by paid staff, even for those journals where the editors do not received a stipend. And while members of editorial boards typically don't get a stipend of any sort, for most mid- and top-tier journals the editors and often the associate editors do receive stipends, even though they are "volunteers" and do it primarily as a matter of professional service.

However you slice it, the publishers make a considerable investment in making peer review happen. (And as a sidebar, there was an interesting discussion on the World Association of Medical Editors discussion list awhile back which had some editors suggesting that reviewers SHOULD get compensated in some way).

Peter Suber

Hi Scott,

You paraphrase the publisher defense of the Conyers bill this way: "If you are going to require us to continue to provide peer review to underlie the scholarly publishing system, then it isn't fair for you to make publicly available versions of our articles available to compete with us. This interferes with our right to control the distribution of our copyrighted material, as provided to us under copyright law."

I think that's an accurate paraphrase of what publishers are saying. But there are two problems with that way of describing the situation.

(1) It assumes that publishers who agree to publish NIH-funded research discover, helplessly, after the fact, that the NIH plans to host OA copies to compete with them. But that's not the way it works. NIH-funded authors don't merely ask publishers, "Will you publish this article?" but "Will you publish it under these terms?" It's a business proposition that publishers can take or leave. Publishers take it with their eyes open. Then in their public statements they fail to mention their consent and cooperation. The NIH is changing the business proposition that authors make to publishers, and if publishers think it's unfair or harmful, they are free to reject it. Publishers (and you) may still dislike the policy for changing the terms that NIH-funded authors demand from publishers. But we shouldn't describe the situation as if publishers were not freely accepting those terms.

(2) It assumes that publishers are the full copyright holders over these articles. But they are not. The NIH policy requires authors to retain a key right and use it to authorize OA through PMC. They may transfer all their other rights to publishers and typically do. But NIH-funded authors no longer transfer the full bundle of rights to publishers, and hence, publishers no longer acquire the full bundle of rights from authors. Publishers still have the right to control the distribution of articles over which they own full copyright. But for articles based on NIH-funded research, ownership is divided and so is control. Publishers (and you) may still object to that division of ownership and control, but we shouldn't describe the situation as if publishers were the copyright holders simpliciter.


Papers on Research

Many institutions limit access to their online information. Making this information available will be an asset to all.

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