November 16, 2007

Open Access bill vetoed

Author: Bruce Byfield

Supporters of the open access movement (OA), the open-source-inspired community that promotes free access to academic research, are disappointed but not discouraged by the defeat of a bill that would have required research published by the National Institutes of Health (NIH) in the United States to be available to the public. Instead, they see the bill as an important step in raising awareness about OA among American legislators and the general public. Nor do they rule out the eventual passage of the OA provisions.

The bill in question is the Labor, Health, and Human Services (LHHS) Appropriations Act, 2008, or HR 3043, which set a budget of $606 billion for spending in these areas. Among the dozens of provisions in the bill was the statement that:

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.

The bill was vetoed by President George W. Bush on November 13. The reason for the veto was not the OA provision, which was not mentioned in his explanation of the move, but rather the proposed funding for what Bush described as "wasteful projects" such as a prison museum, a sailing school, and a program for teaching Portuguese as a second language. Funding for stem cell research, which was expected to be a reason for the veto, had already been removed from the bill.

In contrast to Bush's statement, House Speaker Nancy Pelosi described LHHS as "a bipartisan and fiscally responsible bill."

The veto was widely seen by both the mainstream media and OA supporters such as blogger Peter Suber and Matt Cockerill of Biomed Central, the world's largest OA publisher, as part of Bush's ongoing budget struggle with the Democratic majority in the Congress and the Senate. As Cockerill puts it, considering the recent power struggles between the White House and Congress, everyone was "very much forewarned" of the veto.

The bill returned to Congress on November 16 for a vote to overturn the presidential veto. The vote did succeed, and a revised appropriations bill is now in the works. Whether that revised bill will include the OA provision is still uncertain.


Obviously, the policy of NIH, one of the largest funders of research in the world, has a wide influence, and passage of the bill would probably have encouraged OA support elsewhere in the world. However, disappointment over the bill's failure is muted by the fact that the provision for OA in HR 3043 was relatively mild, as Suber points out.

Similarly, Cockerill notes that policies in such countries as the United Kingdom and Germany are in many cases already in advance of the proposed NIH policy. "This is just one facet of the overall trend to OA," he says.

Both Suber and Cockerill saw reason for optimism. Suber points out that despite intensive lobbying by publishers' groups such as PRISM, a proposed amendment by the White House that would have limited the OA language to ensure that the NIH policy did not undermine peer review or copyright did not survive.

Similarly, two amendments by Senator James Inhofe (R-OK), one to delete the OA provision and the other to dilute the language, were also defeated. Both amendments, Suber suggests, may have been inspired by Reed Elsevier, one of the largest academic publishers in the United States and one of Inhote's top financial supporters.

"It's very clear, and a matter of public record, that a good deal of money is spent by the publishers on lobbying about issues like this," Cockerill says. "But clearly in this case that wasn't enough to block the move toward increasing OA in research. The strength of feeling in government and among the research community has been able to overcome that strong lobby.

Just as importantly, Cockerill suggests that the three-year history of the effort to pass the NIH initiative into law has resulted in increasing awareness of OA among researchers, academic administrators, and elected officials. "The high profile of this bill has certainly kept OA in people's attention." he says. "A lot of the support for OA has been coming, not just from those directly involved in the research community, but also those who have an interest in medical research -- patients, disease-interest groups, taxpayers, and people who have an interest from a lay person's point of view. I think it has been very good in continuing to further awareness of OA."

Cockerill says that the rise of the Internet has increased the demand for accessibility in general. People, he says, are asking, "Who benefits from freezing access to data? Is it the public, or is it only special interest groups who want to maintain the status quo? That question is arising in many situations."

As one proof of the increased awareness, Cockerill cites a recent student forum he attended at Harvard Medical School. Several years ago, he suggests, such a forum would probably have debated the merits of OA. Now, the debate is over the most practical steps needed to implement it. Increasingly, the basic desirability of OA is being taken for granted.

At any rate, as Suber predicted before these events in the SPARC Open Access Newsletter, the OA provision stands a strong chance of being revived. Suber notes that a modified version of LHHS is required to fund the related government departments in 2008, and that the NIH proposal has a good chance of being included in the revised appropriations bill.

"OA has always had strong bipartisan support, and we depended on Republicans as well as Democrats this year for the strong votes in each house," Suber writes. "We particularly depended on Republican support to help prevent the publishing lobby from inserting a stronger objection to the NIH policy." In the long run, then, perhaps not only the war but this particular battle may still be won.


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