A New Beginning or More of the Same?

Rich Apodaca — Thu, 27 Dec 2007 16:02:00 +0000

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.

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.

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.

Image Credit: mayr

"A New Beginning or More of the Same?" by Rich Apodaca

Sun, 30 Dec 2007 21:02:51 +0000

Bill, thanks for your thoughtful reply to this article. I've got some ideas on what both you and Peter Murray-Rust have written in response to this article, which I'll be compiling and posting to Depth-First as time permits.

Will, I agree. Development of Open Access business models that actually work will be far more important than government intervention.

As Aldrich's example shows, we shouldn't expect these new business models to look anything like the closed business models now in use - although some might.

"A New Beginning or More of the Same?" by Will

Fri, 28 Dec 2007 15:52:38 +0000

I think that laws won't create more open access in chemistry. Publishers operating outside 'main' chemistry or in a highly specialised field (crystallography / life sciences / chemical physics) which already offer greater open access are now launching chemistry journals - open access ones.

Even more significant, many of them operate commercial open access journals (profitably) in growing markets like India / Eastern Europe which are going to be big in future.

"A New Beginning or More of the Same?" by bill

Fri, 28 Dec 2007 14:46:43 +0000

Ping.

Depth-First: A New Beginning or More of the Same?

A New Beginning or More of the Same?

"A New Beginning or More of the Same?" by Rich Apodaca

"A New Beginning or More of the Same?" by Will

"A New Beginning or More of the Same?" by bill