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Publishers Still Unhappy with Congress, NIH over Open Access Law

NEW YORK (GenomeWeb News) – Starting Monday, scientists who have used money from the National Institutes of Health to fund their research and who are seeking to publish their findings will face a new, open access publishing landscape, while those in scientific publishing will face a choice about what can be done to preserve their interests.
Starting next week, the NIH will expect all of its grantees who publish articles springing from their research to file a copy in PubMed Central, a free open access website run by the National Library of Medicine, within one year of its initial publication date.
After several years of fighting between supporters in academia, taxpayer rights organizations, and government groups, and those in the publishing business who opposed the policy, it finally became law in late December, through an unexpected route.
The law was slipped into a massive appropriations omnibus bill that funded much of the federal government, and was passed on a work day in Washington between Christmas and New Year’s Day, a fact that still bristles opponents like publishers, who say it was a shifty way to move a bill through government and that it bypassed open hearings in Congress.
According to an industry attorney, scientific publishers could seek a legal remedy later this year.
“[There] was simply no sound reason for Congress to subsequently allow an appropriations rider to take an inconsistent and more controversial route toward … enhancing public access to the results of scientific research,” Alan Adler, vice president of legal and government affairs for the American Association of Publishers, responded after the bill became law. 
But the AAP, which has 260 members including a number of scientific publishers such as Elsevier and the New England Journal of Medicine, wasn’t angry because of the timing of the signing of the bill, but because the NIH announced its implementation date two weeks later, without following the rulemaking procedures for implementing policy.
Under the Administrative Procedures Act of 1946, agencies are to follow an ordered process in implementing such new policies, including notifying the public, inviting written comments, considering comments, and publishing a final rule not less than 30 days before the policy takes effect, and publishing a statement explaining the purposes of the rule.
“Here the NIH has adopted a program of implement first and ask questions later,” Adler told GenomeWeb Daily News today.
The AAP has written to NIH Director Elias Zerhouni attempting to get the agency to follow that procedure, and earlier this week the NIH announced a request for information notice — a call for comments and recommendations that would give anyone who is concerned or confused about the law the chance to find out more about the details of the policy or to point out problems they have with it.
The NIH also said in the notice that it will seek recommendations for alternative implementation approaches, for monitoring and ensuring compliance, and those relating to other issues. The agency plans to issue a report containing comments and recommendations in August.
“We wanted NIH to propose how they’re were going to implement policy, then take public comments, and then to respond to those comments about what they were going to do about them,” Adler said, because that is the way the Administrative Procedures Act works.
This would have allowed the NIH, publishers, and investigators to air out all of their opinions before the policy was completely drafted for implementation.
As it is now, Adler complained, the NIH can simply respond to the comments and recommendations it chooses to in August, without having changed anything and without having followed the APA law.
“This is hardly the meaningful engagement that Congress anticipated” when it passed the law, Adler said, and he left open the possibility that the policy could end up in a Federal court.
“This has not been a good face showing by the agency,” Adler continued, but the current strategy of the publishers will be to follow through with the request for information and the process and see what happens.
After the August report, if the AAP is not happy that its concerns have been addressed, Adler said it was a possibility that this could go to court.
Peter Suber, who has been a longtime and vocal advocate for the open-access law, told GWDN yesterday that the language in the bill left a lot of details up to the agency.
“The NIH could change its policy in light of the comments,” said Suber, who is a professor at Earlham University in Indiana and a senior researcher with the Scholarly Publishing and Academic Resources Coalition, particularly in terms of “looking for ways to make it the least burdensome for authors and journals.”
But as for claims of copyright infringement that some publishers have made, he thinks there may be little chance.
“The publishers’ objections are to the whole idea,” Suber said. “I think they’ll try to suggest deep reforms all the way up to scrapping the whole thing, and they may propose all kinds of things that may serve their interests,” he continued.
Aside from objections the publishers may have, Suber expects the discussion about the policy otherwise will dwell on issues such as compliance — how authors or journals will know what to do, and how well the NIH’s policy of making researchers get submission numbers will help in tracking compliance — as well as the potential financial impact.
The “practical consequences of implementation are hard to describe,” Adler said, because the law is brand new and untested, and because “one size doesn’t fit all; some [publishers] are commercial, some are non-profit, and some are using different models entirely.”

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