Bill Would Block NIH Public Access Policy

Some members of Congress would like to overturn a controversial new policy that requires scientists with grants from the U.S. National Institutes of Health (NIH) to post their papers in a free online database. Today, an important House committee grilled NIH about the policy and floated a proposal that scientific publishers say is needed to protect their products.

Three years ago, NIH began asking grantees to send the agency a copy of their accepted, peer-reviewed papers so that it can make them freely accessible in its PubMed Central archive within 12 months after they are published. But compliance was so poor that proponents of the idea persuaded the House and Senate panels that set NIH's budget to tell the agency to make the policy mandatory (ScienceNOW, 11 January).

NIH says compliance has risen to 56%, or about 3300 papers submitted each month, since the rule took effect in April. (The agency could potentially suspend the grant of an investigator who ignores the policy but is so far relying on less punitive measures, such as reminders). Meanwhile, some commercial and society publishers, such as the American Physiological Society (APS), have complained that the policy infringes on their copyrights and will put them out of business by cutting into their subscription base.

Now the publishers have found allies on the powerful House Judiciary Committee, chaired by Representative John Conyers (D–MI). At a 2-hour hearing of the Subcommittee on Courts, the Internet, and Intellectual Property, Conyers and others questioned the need for the policy when the public can already obtain the papers through a subscription or at a library. Moreover, most journals make their content free after 12 months.

NIH Director Elias Zerhouni defended the policy. He argued that PubMed Central is enhancing the papers by linking to molecular databases and other papers. "The real value is the connectivity," Zerhouni said. He also claimed that "there is no evidence that this has been harmful" to publishers. In response, APS Executive Director Martin Frank, whose society publishes 14 journals, disagrees, telling Science that some journal editors believe the new policy is leading to "fewer eyeballs coming to their sites."

A bill introduced today by Conyers and two other members would bar any federal agency from requiring "the transfer or license" to the government of a paper that has been produced in part with nongovernment funds--a reference to the publisher's costs for peer review and production. The Fair Copyright in Research Works Act (HR 6845) would mean that neither NIH nor any other federal agency could require grantees to submit accepted papers to a free archive.

There is no companion bill in the Senate, and Congress is not expected to act on the legislation before it adjourns later this month. Jonathan Band, a Washington, D.C., attorney who represents the American Library Association, which favors open access, says the bill's sweeping provisions are a fatal flaw. "It goes far beyond the NIH policy. It limits a lot of what the federal government can do," he says. But the keen interest the House Judiciary Committee showed today in the topic suggests that the debate is not over.