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February 18, 2009


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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