Why the NIH bill does not require copyright violation

Rich Apodaca is a founder member of the BlueObelisk – which advocates ODOSOS – Open Data, Open Source and Open Standards (mainly in chemistry). Rich has made major contributions in this area and adds valuable insights on his Depth-First blog. So I was interested that he feels that the NIH bill is misdirected and won’t work because it requires authors to publish as Open Access.

[Note, by the way, that the Blue Obelisk deliberately did not include Open Access in its scope – we are not a universal free love and flowers cult but one that addresses why chemistry needs an overhaul in how its data and knowledge are communicated now and for posterity. We felt that Open Access was orthogonal to ODOSOS. All of us at times publish in closed access journals. Moreover it does not require monk-like adherence to all its principles all the time – but that’s another story.] I quote in full since the premises are important…

Rich Apodaca – A New Beginning or More of the Same?

21:02 27/12/2007, Rich Apodaca,

As discussed by Peter Suber, Peter Murray-Rust and others, President Bush signed H.R. 2764 into law yesterday. Among the many items in this bill is one that proponents argue could change the nature of the Open Access debate. Does this new law represent a fundamentally changed game, or just the next inning of the old one?

The text of the new law spells out what is now required:

SEC. 218. The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

IANAL, but the provision requiring the policy to be implemented “in a manner consistent with copyright law” offers publishers (and scientists) all the flexibility they need to continue business as usual.
The reason is simple. Transfer of copyright from the author of a scientific paper to the publisher is usually one of the first things to happen “upon acceptance” of a manuscript for publication. And the new law makes it perfectly clear that copyright law takes precedence over deposition into PubMed Central.
Most of the journals in question will be hostile to the idea of having their copyrighted material deposited into PubMed Central and so understandably won’t allow it to be done by the authors of papers or anyone else.
Take this hypothetical scenario for example: Professor Gross at California University gets his manuscript approved for publication in the Journal of Nanoscale Devices (JND). Professor Gross is fully aware both of HR 2764 and JND’s refusal to deposit manuscripts into PubMed Central – the reasons why Professor Gross would choose JND anyway are interesting, but not relevant here. Along with the acceptance letter, JND requests prompt return of a signed copyright transfer agreement. Professor Gross sends in the signed form and from that point on, all rights to his article belong to JND. As is their policy, JND refuses Professor Gross permission to deposit a copy of his paper into PubMed Central within 12 months after publication.
Unless I’m missing something, neither Professor Gross nor JND have violated any laws. The assumption made by proponents of the new law seems to be that to implement the new policy, the Director of NIH will forbid publication by grant recipients in journals that don’t allow deposition of articles into PubMed Central.
How many influential scientist do you know of who would tolerate the government telling them which journals they can and can’t publish in? The minute such a misguided policy is put in place, the national scientific outcry would more than overwhelm anything Open Access proponents could muster.

PMR: There are several of the common counterarguments here and I shan’t address all of them. As an axiom let me state that some of them are peculiar to the US and make little sense outside.

The primary confusion is that here the NIH is acting as a grant-giving organisation, not an instrument of government in general. There is no universal US law here, but a contractual agreement between a provider of funds and the recipient. The funder says IF you receive a grant from us THEN you must do X. There is no law requiring anyone in the US or elsewhere to apply for funding to NIH. There are many other funders who support medicine and health including Wellcome, HHMI, Cancer Research UK, etc. Each has its conditions. No one has to apply to any of them.
Almost all funders limit the scope of their funding and impose conditions on recipients. For example a Cancer funder will normally require that the work is related to cancer, a children’s charity to children, etc. There would be cases where national laws might override this (it is likely that funding which is clearly racist would be challenged but it is possible to have a gender specific funder).
All research is likely to be a compromise between:

• what the researcher would like to do
• what the funder would like to be done
• what is feasible and valuable

For example a funder might require that no research involved living animals and some will go further and forbid the use of any animal tissue. The applicant has a choice as to whether they wish to work with constraints or look elsewhere. In some cases (and I hope readers can add them) national funding agencies take strong lines on the permitted use of biotechnology in the work – and this differs from country to country.
In the current case that funder has a contractual requirement that the work be published openly after 12 months. I imagine that this requirement will occur in something like the US CFR

The Code of Federal Regulations (CFR) is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis. More.

These are regulations on how government is carried out. An application for a new drug has to conform to 21CFR11 (and probably many more) . No one is required to develop new drugs but if they do they have to conform. So I hypothesize that in the current case the regulation (which has the force of law) requires the NIH to require grantees to publish their work openly in a specified time frame.
Nothing is said about the manner of publication. The author might, for example, start their own journal specifically for this purpose. They might set up an Open Notebook wiki. (I skip problems of patient confidentiality, etc.). The only requirement would be to satisfy the funders that they had met the regulations. I would not be surprised if the words did not actually specify peer-review (can anyone comment?). If the grant consists of staged contributions then the grantee would have to satisfy the program manager that the work had been published as rapidly as is consistent with good science. I would be amazed if the regulations specified a limited set of journals that were the only ones that could be used, and even more if these were defined by a citation metric algorithm (“you can only publish in journals with IF > 10.0”). There is real scope here for novel types of publication.

Rich: Neither HR 2764 nor any form of government intervention will bring widespread Open Access into being. The only things that will change the status quo are: (1) the availability of tools for making it happen; and (2) the realization by individual investigators that continuing to give away their hard-earned copyright makes them far less competitive than their peers who don’t.

PMR: HR 2764 will have a major impact. Partly because there are many scientists who will be directly affected by it, but partly because it is symbolic. Other funders (e.g. European or national governments) will now be compared against the NIH. I can write to the UK EPSRC and ask them why they don’t do the same. (Of the 7 research councils in the UK, the EPSRC is almost alone in not requiring some form of Open publication). I know the current answer, but who knows – they may have already started to change. Europe has been debating whether European research must be made open.
An analogy with Open Source may be useful. Several funders require that all software created in a program should be released as Open Source. Many universities require that academics maximise the income they generate from their research. These two are often in conflict. My own approach is to release most software as Open Source. However in some cases I have taken industrial funding and the output of that is usually different. If I felt that this would be against fundamental principles I would turn the funding down. Simple.

Open Access proponents should forget about getting the Federal Government to fix the mess that modern scientific publication has become. Instead, they should focus on making Open Access-like options more attractive to scientists.

PMR: This is a purely US argument which is almost incomprehensible on this side of the Atlantic and probably almost everywhere else. No one likes paying taxes, but we accept that government tries to spend them wisely. It  [the argument] is epitomized in Rudy Baum’s “Socialized Science” and More Socialized Science articles.
The word socialize means:

1. socialise – take part in social activities; interact with others;
2. socialise – train for a social environment; “The children must be properly socialized”
3. socialise – prepare for social life; “Children have to be socialized in school”
4. socialise – make conform to socialist ideas and philosophies; “Health care should be socialized!”

Meaning 4 (presumably Rudy’s usage) is – I think – entirely unknown outside the US. When I used the apparent synonym “socialist” Rudy corrected me. I therefore have no idea what the word means other than that it seems to be pejorative. There is clearly a strong US-only political undercurrent which we outsiders should not try to swim in.
To finish: Open Access enthusiasts are working very hard to create attractive options. A major part of this (“the tools”) are new publishers and organs.It takes ca. 5 years for a new conventional journal to achieve serious impact factors and a number of these have and are being launched. I expect that, like OUP and BMC Bioinformatics, we shall see many of the new ones prosper.
What I really fear is the growth of “hybrid horrors”. This is where the publishers create something which isn’t really Open but is covered by such a mass of verbiage that it is almost impossible to work through. I’ve spent weeks earlier this year trying to uncover publisher policies and in some cases failing. When I do find out what is happening it is heavily publisher-specific and often not even implemented as they say it is. So I expect to see a continued stream of “slightly-Open” offerings trumpeted as NIH-compliant. This requires heavy work to investigate and police – work which is entirely unproductive and usually unfunded.
The great advantage of the  requirement to deposit in Pubmed (rather than simply to expose on a publisher or other website) is that the act is clear. You can’t “half-deposit” in Pubmed. They have the resources to decide whether any copyright statement allows the appropriate use of the information or is suffiently restrrictive that it does not meet the NIH rules.
At some stage the community will get tired of the continual drain on innovation set by the current approach to publihing. Whether when that happens many publishers will be left is unclear.