[Infowarrior] - NIH's open access science in peril

[Richard Forno]

Oh Goodie....the cluebot Howard "Hollywood" Berman is at it again.   
But then again, he's fully-owned by the copyright cartels.   But the  
best paragraph comes toward the end where it suggests Congresscritters  
get a primer in academic publishing activities.    --rf

Congress's copyright fight puts open access science in peril

By John Timmer | Published: September 16, 2008 - 12:55PM CT

http://arstechnica.com/articles/culture/open-access-science.ars

Backlash against open access

In recent years, scientific publishing has changed profoundly as the  
Internet simplified access to the scientific journals that once  
required a trip to a university library. That ease of access has  
caused many to question why commercial publishers are able to dictate  
the terms by which publicly funded research is made available to the  
public that paid for it.

Open access proponents won a big victory when Congress voted to compel  
the National Institutes of Health to set a policy of hosting copies of  
the text of all publications produced by research it funds, a policy  
that has taken effect this year. Now, it appears that the publishing  
industry may be trying to get Congress to introduce legislation that  
will reverse its earlier decision under the guise of strengthening  
copyright protections.

Under existing law, the products of federally funded research belong  
to the scientists that perform it and institutions that host them.  
Academic journals have traditionally had researchers transfer the  
copyright of publications resulting from this research to the  
journals. The current NIH policy requires that authors they fund  
reserve the right to place the text and images of their publication in  
an NIH database hosted at PubMed Central (PMC).

To protect commercial publishers, papers submitted to PMC are not made  
accessible until a year after publication, and are not required to  
include the formatting and integration of images performed by the  
publisher. This one-year limit is shorter than that required by other  
governments and private funding bodies such as the Howard Hughes  
Medical Institute and the Wellcome Trust. Many publishers have  
embraced this policy, and allow the fully formatted paper to be made  
available, sometimes after a shorter embargo.
Open Access meets resistance

Not all publishers have embraced it, however, and some have tried to  
exact exorbitant fees for allowing manuscripts to be transferred to  
PMC. Others have engaged in aggressive lobbying against open access  
efforts.

Those efforts may be paying off. The House of Representatives has seen  
the introduction of legislation, HR 6845 that, depending on its final  
format, may significantly curtail or eliminate the NIH's ability to  
continue its open access policy. The current bill would prevent any  
arm of the federal government from making research funding contingent  
upon "the transfer or license to or for a Federal agency of... any  
right provided under paragraph (1) or (2) of section 106 in an  
extrinsic work, to the extent that, solely for purposes of this  
subsection, such right involves the availability to the public of that  
work." Those Section 106 rights include the reproduction of the work.

Although that would seem to rule out the existing NIH policy, there is  
a certain amount of legal wiggle room there. For example, the NIH  
could fund a private entity to maintain PMC, and thus have the right  
to reproduction transferred to an independent entity. Nevertheless,  
the bill would appear to directly target the prior legislation that  
put the NIH in the business of mandating public access in the first  
place.
The Intellectual Property Subcommittee comes up to speed

Last week, the Judiciary Committee's Subcommittee on Courts, the  
Internet, and Intellectual Property held a hearing on the proposed  
legislation. If anyone was thinking that policies related to publicly  
funded scientific research were free of politicking and rampant self- 
interest so frequently involved in the copyright and intellectual  
property battles, the hearings would have erased them. Legislators  
questioned whether it made sense to mandate the transfer of copyrights  
at a time when the US government was pushing for other governments to  
respect those rights. At one point, hearing chair Howard Berman (D-CA)  
noted that the N in NIH shouldn't stand for Napster.

It also became apparent that there was a bit of a turf battle going  
on. The Intellectual Property Subcommittee clearly felt that it had  
been ignored during the original passage of the bill that compelled  
the NIH's open access policy, and several members expressed  
displeasure at having been bypassed, and suggested the bill was useful  
simply for allowing them to have a voice on the matter.

That said, many of the representatives were clearly in need of a  
primer in academic publishing. Different members of the Subcommittee  
expressed surprise at various aspects of the current system, such as  
the fact that peer reviewers perform the function free (although, as  
noted, the process of arranging for peer review can be expensive).  
Also eliciting surprise was the revelation that authors are not paid  
by publishers for the transfer of copyright.

In fact, many publishers charge money for the publication of  
scientific research, even those that obtain copyright to the work in  
the process. Dr. Elias Zerhouni, director of the NIH, shocked Berman  
when he mentioned that the NIH hands out $100 million a year to grant  
recipients specifically to cover the cost of publishing their results.  
It would certainly have been possible for those testifying in favor of  
the open access policy to argue that the public pays part of the cost  
of nearly every stage of the publishing process, and might expect to  
have some access to the end product.