Critique of APS Critique of NIH Proposal

From: Stevan Harnad <>
Date: Tue, 30 Nov 2004 05:49:58 +0000

On Mon, 29 Nov 2004, Liblicense-L Listowner wrote:

> See: <>
> This site contains a short, though complex, summary of legal issues raised
> by the NIH proposal. From the legally minded on this list, any comments?
> Ann Okerson/Yale Library

Here is a critique, as ordered:

> APS Comments on the NIH Public Access Proposal
> The APS supports the principle of public access to science but believes that the
> NIH plan is not the right approach. The APS submitted a detailed analysis of
> public policy shortcomings and legal defects of the proposal. The legal analysis
> incorporated into the APS comment was jointly commissioned by the APS and the
> American Association of Immunologists (AAI).

There is no legal issue whatsoever. The National Institutes of Health
(NIH) are not proposing anything to publishers, they are merely adding
another condition to the list of conditions for receiving NIH funding. One
of the conditions for receiving NIH funding is to perform the research
that is funded; another is to analyse the results; another is to publish
the findings in peer-reviewed journals. The further condition, arising
with the advent of the internet, is to make the published findings
publicly accessible online for free for all would-be users who (or whose
institutions) cannot afford the fee-based published version, so as to
maximise the usage, impact, and benefits of the funded research.

> The APS has concluded that the NIH proposal will do little to enhance public
> access to biomedical research while causing disproportionate harm to
> not-for-profit societies that publish high-quality journals containing a
> significant amount of NIH-funded research. This cohort includes many publishers
> who already provide some form of free public access.

It is very hard to imagine how the APS can conclude that making the
NIH-funded research publicly accessible for free -- for all would-be
users online who (or whose institutions) cannot afford the fee-based
published version -- can fail to enhance public access. It is a fact that
no library can afford all or most journals, and most can only afford
a small minority of them:
That means most articles are inaccessible to most users at most
institutions. Public online access remedies that.

It is hard to see why APS would call this sure benefit "little" --
and particularly at the same time as claiming that it will cause
"disproportionate harm" to publishers: The *benefit* (online access for
free for all would-be users of NIH-funded research) is a fact-based one,
already demonstrated in those cases where such free online public access
has actually been provided.

In contrast, the "harm" is a completely hypothetical one, based on
speculations about nonexistent effects, for which there is no positive
evidence whatsoever, and for which all evidence to date is contrary
evidence, suggesting instead that fee-based journal publishing can
co-exist peacefully with author-provided free supplementary online access
for all those would-be users who cannot afford the fee-based version.

    "Critique of STM Critique of NIH Proposal"

    "Critique of PSP/AAP Critique of NIH Proposal"

> The APS recommends that instead of this proposal, the NIH should enhance the
> existing MedLine/PubMed web site so that it is possible to search the full text of
> articles on journals' own websites. These searches would yield links to finished
> articles on those websites rather than access to manuscripts. A number of
> publishers have already expressed interest in this approach, which would lead to
> the development of a comprehensive search engine that would do for biomedical
> research what search engines such as Google and Yahoo do for the web as a whole.

If all journals publishing NIH-funded research were to make the full-texts
of those article accessible online for free for all would-be users via
Medline/Pubmed, this would most definitely make the NIH public access
proposal unnecessary.

Unfortunately, the fact is that all (or most, or even many) journals
publishing NIH-funded research are *not* making the full-texts of
NIH-funded research articles accessible online for free for all would-be
users via Medline/Pubmed, nor are they planning to do so. Moreover,
if they *did* do so, they would merely be implementing NIH's proposal
to make NIH-funded research publicly accessible for all would-be users
online who cannot afford the fee-based published version.

So just what is the point here? And how are the journals proposing to
implement free online access only for NIH-funded research -- or are all
their articles to be made accessible online for free for all would-be
users via Medline/Pubmed? For that would be tantamount to the journals
voluntarily converting to Open Access journal publication, which is a
rather more radical proposition that the one NIH is making!

Or is this all just a full-text *search* option, rather than a full-text
*access* option? For then it would fail to provide the very benefit
for which the NIH proposal is designed, namely, that all NIH-funded
research articles should be made accessible online for free for all
would-be users who cannot afford the fee-based version.

> This approach has a number of advantages to all parties. For NIH, this arrangement
> would make it possible to search the text of all biomedical research articles and
> not just the 10% that are based on NIH-funded research.

To *search* the text, but not to *access* and *use* the text!

> Journals, and especially high-quality journals that publish a significant
> proportion of NIH-funded research, would still be able to determine
> their own access policies based upon cost recovery requirements.

Under the NIH proposal, journals *are* still able to determine their
own access policies based upon cost recovery requirements, exactly as
they did before. What is being proposed is not to place conditions on
journals but on NIH-funded researchers. The condition is that NIH-funded
*researchers* must make make their NIH-funded research articles publicly
accessible online for free for all would-be users who cannot afford
the fee-based published version. The condition is not that *journals* must
make their contents publicly accessible online for free, for that would be
tantamount to mandating that journals convert to Open Access publishing,
which is something that NIH cannot do, and is not proposing to do. That
outcome, on the contrary, is merely being *hypothesized* by APS in the
form of a speculative doomsday scenario, involving hypothetical harm
to journals for which there exists no evidence from all the cases of free
author-provided public online access to date (20%, which is already more
than the NIH 10% that APS refers to here).

> Finally, and perhaps most importantly of all, instead
> of access to manuscripts, this would make it possible to locate the final
> copy-edited version of articles presented in context with links to related
> materials such as commentaries and corrections.

"Locate"? What is being proposed by the APS is full-text search followed by
*fee-based* access, whereas what is being proposed by NIH is free online access.

> This policy section of the APS comment will address a series of questions about
> the NIH proposal. These include:
> Should NIH operate a manuscript repository?

The point is not who operates the repository, nor whether it is central or
distributed. The point is that the NIH-funded research articles in it must
be publicly accessible online for free by all would-be users who cannot afford
the fee-based version.

> Should NIH mandate public access after 6 months?

Immediate public access is optimal. There is no research-based reason
that access by all would-be users who cannot afford the fee-based version
should be embargoed for one microsecond from the moment of acceptance
of the final, peer-reviewed draft (or even, optionally, at the author's
discretion, earlier, with public access to pre-refereeing preprints). On
the contrary, such an embargo is contrary to the interests of research
impact, progress and productivity.

    "Shulenburger on open access: so NEAR and yet so far"

> Are the costs of the proposal warranted?

What costs? and costs to whom? The cost for providing public online access
are under $10 per paper!

    "papers are normally posted within a day of submission, and
    Ginsparg estimates that the cost is less than $10 per paper"

> The legal analysis commissioned by APS and AAI addresses a variety of defects in
> the NIH proposal, which are summarized below:
> NIH's plan would infringe on the copyright interests of (a) federal grantees
> who author copyrighted articles based upon NIH-sponsored research,

Infringe the funded *researchers'* copyright interests? What interests
are those? The author seeks and receives no royalties or fees from the
sale of his work. All he seeks is as many users as possible, as much
research impact as possible: Indeed, he is *rewarded* for that research
impact through salary increases and further research funding. All attempts
to reduce access to his work are in fact reducing his income. Infringing
on the researcher's copyright interests?

This "legal analysis" seems to be based on the mistaken assumption that these are
pop music stars, trying to maximize their royalty income interests, rather than
researchers, trying to maximize their research impact interests!

> and (b) publishers of professional journals that have accepted those
> articles for publication and to whom copyright interests have been
> conveyed.

Ninety-two percent of journals have already agreed to author self-archiving.
The remaining 8% would be well-advised to do so too, or risk losing their
NIH-funded authors to the other 92%. (All 16 APS journals, by the way, are
among the 92%; the AAI's one Journal of Immunology is not.))

> These copyright
> interests are well-established under federal law and NIH has no authority to alter
> them on its own.

Nor is NIH altering them (any more than it is mandating Open Access
Publishing). NIH is merely adding a condition to the receipt of NIH
research funding: Make your research article publicly accessible online
for free. The 8% of journals who do not yet agree to that can either
change their policies or risk losing their NIH-funded authors to the
other 92%.

> Consequently, NIH must, as a general matter, obtain permission
> from those authors who have retained a copyright interest and the publishers in
> order to distribute and/or display accepted manuscripts of the articles to the
> general public.

Permission? Permission for making a precondition on the receipt of an NIH grant to
fund the conduct of future research? (I think these copyright lawyers should
go back to the pop music and book interests and rights they seem to understand
a good deal better than they understand the interests of researchers and the
rights of their funders!)

> The plan is fatally flawed as it fails to recognize the need to obtain
> copyright permission from authors and/or publishers to distribute or display
> manuscript copies to the public.

APS's legal advisor seem to have a problem with the arrow of real time here:
research is funded *before* it is conducted or published, and NIH preconditions
come *before* funding: before there is any content to negotiate copyright about,
and a condition for there ever being such!

> Suggestions that such permission may be excused
> by resort to the ?fair use? defense or NIH?s ?federal purpose? license in the
> manuscripts are without merit.

And they are also unnecessary and irrelevant. The fact is this: 92% of journals
already agree to author self-archiving. The remaining 8% can either agree or
risk losing their authors to the other 92%, for those authors will be bound
by a *precondition* of their receiving the funding to conduct their research.

> In addition, as to grantees under the Small
> Business Innovation Research program, NIH has no authority even to seek such
> permission without approval of the U.S. Small Business Administration.

What on earth does this have to do with the conditions NIH may or may not impose
on the receipt of NIH research funding?

> The plan threatens to undercut the Bayh-Dole Act by interfering with
> technology transfer. NIH has recognized in Congressional testimony that
> scientific publications are an important component of technology transfer for
> NIH-sponsored research, and weakening that technology transfer component would
> represent poor public policy. NIH?s plan also undermines the principle of the
> Bayh-Dole Act that the private sector is the preferable vehicle to move
> federally-funded research results to the public and the marketplace.

The relevant "technology transfer* for *research* is to the users and appliers
of the research. If anyone would be impeding technology transfer, it would be
anyone who tried to impede access to the research by all its would-be users and

> Because NIH is subject to the Freedom of Information Act and intends to
> place the accepted manuscripts into an NIH database, manuscripts submitted to NIH
> likely constitute ?printed publications? under U.S. patent laws. Consequently,
> the date such a draft manuscript is submitted to NIH would trigger the running of
> the one-year time period for filing a U.S. patent application covering research
> disclosed in the manuscript, and patent applications filed after that date in
> foreign countries that do not provide a grace period similar to U.S. law will be
> time-barred. This is a change from current practice, which relies on the date of
> journal publication, and risks significant adverse consequences for researchers
> and NIH.

This nonsense is beyond belief! The clock starts when an article is *published*.
It has nothing to do with whether access to it is on-line or on-paper,
for-fee or for-free!

> The NIH plan constitutes a legislative rule-making under the Administrative
> Procedure Act. However, NIH lacks the authority to adopt this plan because it is
> without legislative rule-making power, and in any event cannot adopt a plan that
> is at variance with a controlling DHHS regulation. Even if NIH could undertake
> legislative rule-making, formal notice and a public comment opportunity are
> required. The current notice is legally inadequate for legislative rule-making
> because it fails to provide sufficient details of the plan or the data upon which
> NIH has relied to afford the public a meaningful comment opportunity.

Legislative rule-making? Is it legislative rule-making to make it a
condition of receiving NIH research funding that the research must be
*conducted*, so that the findings are known? that the findings, once
known, must be *published*, so that they can be used and applied? that the
published findings must be made accessible to all would-be users and appliers?
Where in this seamless continuum is the "legislative rule-making" and the
departure from a "controlling DHHS regulation"? (Are the legal analysts
advising APS here serious? Is there no embarrassment at this vapid
smoke-screen, obvious even to a layman?)

> Because the Regulatory Flexibility Act applies to NIH?s plan, NIH cannot
> proceed unless it undertakes the regulatory flexibility analyses required under
> the Act. Moreover, the Associations, as small entities under the Act, would be
> entitled to judicial review of NIH?s compliance (or non-compliance) with the Act.

Please reforumulate this in terms of what researchers and research-funders
actually do, as spelled out several times above: fund, conduct, publish,
and use research findings.

> The Paperwork Reduction Act applies to NIH?s plan. NIH is required by law
> to comply with that Act, and failing to do so, NIH cannot enforce any penalty on
> NIH grantees who decline to submit manuscripts as required by NIH?s plan.

NIH is not entitled to make conditions on funding research? such as that it must
be conducted, published, and made accessible to all its potential users and

> OMB Circular A-76 applies to NIH?s plan. NIH cannot implement its plan
> unless the agency performs a cost-comparison study and determines that its plan to
> have NIH distribute NIH-sponsored research results using accepted manuscripts is
> less expensive for the federal government than the present system of scientific
> publishing.

The NIH proposal is not a *substitute* for the present system of scientific
publishing, it is a *supplement* to it. What is being proposed is conditions
on research fundees, receiving NIH research funding, and how they provide
access to their findings, not conditions on publishers, and how they implement
their system of publishing. The former occurs in parallel with the latter,
not in place of it.

> Because NIH?s plan would interfere with constitutionally protected rights,
> NIH would need to satisfy analytical and reporting requirements to OMB as to
> potential obligations imposed by the Just Compensation Clause of the Fifth
> Amendment.

This is interesting: The 8% of journals who have not yet agreed to author
self-archiving, and who risk losing their NIH authors, have had their 5th
amendment rights violated? If NIH had stipulated that that the research could
only be reported in journals of a minimum circulation of 2000 institutions, would
that have violated the 5th amendment rights of the journals with <2000
circulations too? (Is this how legal reasoning works?)

> Additionally, while DHHS could, conceivably, change its grant
> regulation on grantee copyright ownership to authorize NIH?s plan, such a change
> would require OMB approval for a deviation from OMB?s uniform grant rules.

Copyright ownership is not an issue for 92% of journals. Failure to agree to
public-access self-archiving by its authors is an issue for the remaining
8% of journals who thereby stand at risk of losing their NIH-funded
authorship. Not clear what DHHS or OMB have to do with any of this. Sounds
like a marketplace issue...

> The APS therefore recommends that NIH withdraw this proposal and work
> cooperatively with publishers to determine how best to promote reasonable and
> sustainable policies to improve public access to science.

The APS would be better advised to recommend that the 8% of journals who have not
yet done so agree to public-access self-archiving (as all 16 APS journals
have already done -- the AAI's one Journal of Immunology has not) or
risk losing their NIH-funded authorship.

Stevan Harnad
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Received on Tue Nov 30 2004 - 05:49:58 GMT

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