Crunch Time - Can NIH Grant Recipients Still Publish in ACS Journals?

A new law that introduces major changes in the way many U.S. scientific papers are published and redistributed is about to go into effect. Late last year, President Bush signed into law H.R. 2764 (now Public Law 110-161), part of which gives a broad new mandate to the NIH to intervene in the scientific publication system:

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.

A new NIH Public Access Website describes how the agency intends to implement the law. Recipients of NIH funds have two options for complying:

1. If you choose to publish your article in certain journals, you need do nothing further to comply with the submission requirement of the Policy. See http://publicaccess.nih.gov/submit_process_journals.htm for a list of these journals.
2. For any journal other than one of those in this list, the author must: a. Inform the journal that the article is subject to the Public Access Policy when submitting it for publication. b. Make sure that any copyright transfer or other publication agreement allows the article to be submitted to NIH in accordance with the Policy. For more information, see the FAQ Whose approval do I need to submit my article to PubMed Central? and consult with your Institution. c. Submit the article to NIH, upon acceptance for publication. See the Submission Process for more information.

The new policy becomes effective April 7, 2008.

In other words, all recipients of NIH funds will soon have an obligation under Federal Law to disclose to journals not on the NIH's list that their work is subject to PL 110-161.

The question is: what will the journals, some of which represent the most prestigious in their field, do with this information?

What Will the ACS Do?

For an organization making a lot of noise recently about its new Web site and focus on communication with its members, the ACS has been very quiet on what what position, if any, it will take regarding the new law.

In fact, from the ACS Homepage, one might get the impression nothing has changed. Looking at the home pages for flagship journals with a large amount of NIH-funded content provided no insights, either; J. Med. Chem, J. Org. Chem., and Org. Lett. have nothing to say on PL 110-161 that I could find.

The ACS author copyright release form doesn't appear to have changed. In other words, when you agree to publish your article in an ACS journal, you're still handing over copyright in your work to the ACS, who has the right under Copyright Law (and presumably PL 110-161) to prevent NIH grant recipients from depositing their manuscript into PubMed Central.

Even the ACS Office of Policy and Legislative & Government Affairs has zero guidance, as of this writing, to offer prospective authors who may have questions about complying with PL 110-161.

Misplaced Burden of Compliance

One of the many problems with PL 110-161 Section 218 is that it places the burden of compliance on authors themselves, not publishers. The law states very clearly that implementations must be "consistent with copyright law." As I wrote previously, this provision gives all the latitude needed to continue business as usual, which is exactly what we're seeing so far.

Two critical questions remain unanswered:

• What obligation, if any, does the ACS have to reject manuscripts from NIH-funded authors, given that it remains ACS policy to take copyright from its authors and with it the right to deposit the accepted manuscript into PubMed Central?
• What obligation, if any, do NIH-funded authors have to avoid publication in journals that strip copyright from them and thereby prevent their ability to comply with PL 110-161?

In partial answer to the second question, the NIH offers this FAQ:

Whose approval do I need to submit my article to PubMed Central?

Authors own the original copyrights to materials they write. Consistent with individual arrangements with authors' employing institutions, authors often transfer some or all of these rights to the publisher when the journal agrees to publish their article. Some publishers may ask authors to transfer copyrights for a manuscript when it is first submitted to a journal for review. Authors should work with the publisher before any rights are transferred to ensure that all conditions of the NIH Public Access Policy can be met. Authors should avoid signing any agreements with publishers that do not allow the author to comply with the NIH Public Access Policy. Federal employees always may submit their final peer-reviewed manuscript to PubMed Central, because government works are not subject to copyright protection in the United States.

But even here the language is garbled. Saying that an author "should avoid signing any agreements with publishers that do not allow the author to comply with the NIH Public Access Policy" is not the same as saying authors "shall not sign any agreements with publishers that do not allow the author to comply with the NIH Public Access Policy."

The former describes a suggestion; the latter describes a punishable offense.

Regardless of whether or not PL 110-161 is good public policy, far greater clarity will be needed from both the NIH and scientific publishers if the new law is to be enforced effectively.

Disclaimer: I am not a lawyer.