Open Access and the NIH

In 1978, in enacting Section 105 of title 17, Congress faced a choice about what to do with copyrighted works that result from government funding, including basic research funding of scientific, technical, and medical (“STM”) journal articles. One approach was simply to preclude any assertion of copyright, treating such works the same way as works created by government employees within the scope of their employment. That approach would have been simple to apply, but might have inhibited the publication of some STM journals, at a time when hard copy ruled as the method of distribution. Congress chose a middle approach, discussed here in the 1976 House Judiciary Committee report:, which begins by referring to the definition of “work of the United States government”:

A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a ''double subsidy,'' and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation and the basically different policy considerations applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.

The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions.
H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 59 (1976).

With the advent of the World Wide Web, the National Institutes of Health, which provides about $30 billion in research grants, decided the public and other researchers would benefit from having STM articles it was funding placed in the National Library of Medicine’s PubMed Central on line archive. Acting responsibly, a NIH adopted a voluntary deposit policy several years ago, but participation was extremely low because STM publishers were opposed to it and the authors were not well informed about it. So, in the 2008 Labor-HHS Appropriations bill, Congress directed NIH to adopt a mandatory deposit policy. The STM publishers lobbied very hard against the bill, both in Congress and in the Administration (e.g., trying to convince HHS to withdraw support of the policy). Congress rejected the opposition, and enacted the mandatory deposit policy.

Under the policy, the grantee must ensure that a copy of the author’s final manuscript is electronically submitted to the PubMed Central archive, and that no later than 12 months after publication, the NIH may make the full text of the manuscript publicly accessible in PMC. The policy went into effect in April of this year, and with no apparent difficulty in compliance. As noted above, NIH provides about $30 billion in research grants, which amounts on average to about $400,000 per grantee. STM publishers require the authors/grantees to transfer the copyright as a condition of publication. The publishers manage the peer review process, but the peer reviewers generally aren't paid -- they are members of the community who do the peer review for free. Public institutions pay the salaries of the researchers and the hard costs of the building, lab, materials, energy etc., a very large amount. Publishers thus get the content for free, generally get the peer review for free, and don’t pay a penny toward the costs of the research. Under the current NIH policy, they have a 12 month period of exclusivity for individual articles, and a 95 year term of protection for the journal which they may also load up with all the DRMs their little hearts desire. Since time is usually of the essence in STM publishing, and subscriptions are sold by the year for a journal and not by individual article, publishers are provided with ample opportunity to recoup their investment and make a profit.

The American Psychological Association is reported to have to gone off the deep end on the issue. As reported in The Open Access News Blog on July 15, 2008:

The American Psychological Association may have the worst publisher policy to date for NIH-funded authors. Excerpt:

In compliance with [the NIH OA policy], APA will deposit the final peer-reviewed manuscript of NIH-funded research to PMC upon acceptance for publication. The deposit fee of $2,500 per manuscript for 2008 will be billed to the author's university per NIH policy....

Even after collecting the fee, the APA will not deposit the published version of the article, will not allow OA release for 12 months, will not allow authors to deposit in PMC themselves (and bypass the fee), will not allow authors to deposit in any other OA repository, and will not allow authors to retain copyright.


As a commentator pointed out on that blog:

Since there is virtually no cost associated with the mechanics of deposit itself, and the NIH policy allows an embargo on public availability of articles of up to one year in order to protect the traditional subscription market, it is hard to see what this policy is intended to accomplish other than to force an additional income stream out of the faculty authors who already provide the APA with free content. And there is heavy irony in the APA’s assertion that they can do this “as the copyright holder.” ...

The NIH policy has been raised most recently by a bill reported out by the Subcommittee on Labor, Health and Human Services, Education, and Related Services passed out of a provision for Fiscal Year 2009 appropriations which would continue the NIH policy. STM publishers are claiming that the issue is one that arises under the copyright law, and are attempting to have the Judiciary Committee intervene on their behalf. The claim that the NIH policy raises copyright issues is absurd. First, the policy does not reach the journal at all; only individual articles. Publishers’ investment is thus left untouched entirely. Publishers did not invest a dime in the individual articles, and thus have no investment to complain about. They still have a 12 month window of exclusivity for the articles, which is quite long enough to ensure that their only investment – in the journal – is protected. As reviewed at the beginning of this posting, Congress could have chosen to deny all protection to STM articles funded in whole or in part by the government. It is surprising by taking a less extreme, balanced approach, Congress is now being attacked by those who contributed nothing financially to the creation of the works.