The NIH, public access, and you

Ed.: I’m pleased to welcome our next guest blogger, Nelson Pavlosky. Mr. Pavlosky is a law student at George Mason University in Arlington, Va. As co-founder of both Students for Free Culture and its first campus chapter, Free Culture Swarthmore, Nelson has been a leader in the student free culture movement. He made headlines in 2003 as a plaintiff in OPG v. Diebold, a case which set an important precedent protecting freedom of speech from abuse of copyright law. This summer he is interning at SPARC and advocating for open access to research.

Opinions are solely those of the author.

At the end of 2007 open access advocates won an important victory when President Bush signed into law a public access mandate for the National Institutes of Health (NIH), directing the agency to provide open access to findings from its funded research. Unfortunately, a number of publishers who benefit from high journal prices — and from charging the public for access to publicly funded research — have banded together to try to undermine or repeal the NIH public access mandate. It is essential that students become informed about this issue and join open access advocates in defending the NIH public access policy, and so I would like to explain what is at stake and how students can help.

What is the NIH?

The National Institutes of Health is a United States government agency which funds biomedical and health-related research. It is the largest funder of medical research in the world, and the largest funder of non-classified research in the US federal government. It has a $29 million budget and its funding is responsible for roughly 80,000 articles in scholarly journals every year. The impact of the NIH and similar government agencies on scholarly research is dramatic, since about half of all university research funding comes from the federal government. [See the Provosts' 2006 letter supporting FRPAA]

It seems like a no-brainer that publicly funded research should be freely available to the taxpayers who fund it, and people are always surprised when I tell them that until recently it was not. Yes — until the NIH public access mandate was passed by Congress, about 96% of the NIH’s research was only available in expensive, restricted-access journals. In order to read the results of the research that your taxes paid for, you had to belong to an institution that could afford the increasingly absurd prices of academic journals. The comments of publishing industry analysts at Credit Suisse First Boston explain the dire situation well:

[W]e would expect governments (and taxpayers) to examine the fact that they are essentially funding the same purchase three times: governments and taxpayers fund most academic research, pay the salaries of the academics who undertake the peer review process and fund the libraries that buy the output, without receiving a penny in exchange from the publishers for producing and reviewing the content….We do not see this as sustainable in the long term, given pressure on university and government budgets. [From SPARC's comment, page 4]

Happily, the NIH public access mandate will do a great deal to lighten this burden on the public.

What is the NIH public access mandate?

The NIH public access mandate provides free online access to full-text, peer-reviewed journal articles arising from taxpayer-funded research. The NIH requires every scientist who receives an NIH research grant, and who publishes the results in a peer-reviewed journal, to post a digital copy of the article in PubMed Central, the online digital library maintained by the NIH. This free digital copy must be publicly available no later than 12 months after publication in the peer-reviewed journal. (As the Canadian Library Association recently pointed out, this kind of delay — designed to accommodate publisher concerns about loss of subscription revenues — should be seen as a temporary measure to help publishers adapt, as we eventually move to a world where access is open immediately upon publication.)

Why is the public access mandate important?

Innumerable people before me have made the case for why open access in general is important, and I highly recommend reading SPARC’s The Right To Research site for information on why open access is important to students. It is important to note that the NIH public access policy does not actually require the articles to be open access according to the BBB definition, i.e. released under a free license such as a Creative Commons license which explicitly allows for e.g. redistribution. Most of the articles that will be made available on PubMed Central will be covered by ordinary copyright. However, making all of these NIH-funded articles available for free online will have many of the same effects and benefits as open access publishing, and facilitate the transition to full open access.

The benefits of the NIH mandate in particular have also been exhaustively covered in documents such as SPARC’s response to NIH during the public comment period. Given the focus of NIH on medical research, the NIH mandate will have a huge impact on people who are ill or at risk of disease, as well as the people who care for them or who are researching treatments for their ailments. I found the comments of one mother to be particularly compelling:

My children have a genetic disease. It is rare, not well understood, and there is no treatment or cure. However, the most disturbing obstacle we face is the wall around published scientific research. Information critical to health and biomedical research is held hostage by questionable and arcane publishing practices. It is time for publishers, both private and academic, to redesign their business models in response to a new age of information sharing and a stronger sense of the scientific commons.

The research that is funded by the NIH has great potential to improve or even save lives, and it’s vital that it be made available to as many people as possible.

How are the publishers trying to get the NIH mandate overturned?

The publishers are trying to derail the NIH public access policy in a number of ways — mostly behind closed doors, since they have lost quite publicly several times. One method is publicly revealed in a comment by the Association of American Publishers which can be found on the NIH site. The publishers are making bogus claims that the NIH policy constitutes a change in copyright law, which requires further review by various executive and legislative bodies. This is silly because all that is happening here is that the people paying for the research — the US government through the NIH — are requiring a non-exclusive license to publish the research that they paid for. The NIH policy is a perfectly normal case of contract law and does not impact copyright in any way.
Nevertheless, we can expect the publishers to use this bogus interpretation of copyright law to try to overturn or undermine the NIH mandate, whether through legislative action, lawsuits, or executive action.

What can you do to support the NIH policy?

The NIH has just completed a public comment period, and the publishers have not yet made any overt moves which can be opposed by the public. However, you can be certain that your help will be needed in the future, especially if the publishers start pushing to repeal or weaken the NIH public access mandate.

To stay informed and be ready to respond if the publishers make their move, you can subscribe to the SPARC mailing list or to SPARC’s RSS feed. Check the websites for the Alliance for Taxpayer Access and SPARC now and then to catch up on the latest news. And to support open access in general, check out SPARC’s page on what students can do to support open access.