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.

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 longer 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.

Not all pub­lish­ers have embraced it, 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.

[via http://arstechnica.com]

17th September, 2008