9. The largest and most visible U.S. initiative is the public-access policy of the National Institutes of Health (NIH), which asks NIH grantees to deposit copies of any full-text, peer-reviewed articles resulting from NIH-funded research in PubMed Central (PMC), the OA repository maintained by the NIH.In July 2004, Congress instructed the NIH to develop a policy requiring OA to the results of NIH-funded research and require it to be available online within six months of its publication in peer-reviewed journals. The final version of the policy fell short of the Congressional directive, substituting a request for the requirement and extending the permissible delay to 12 months after publication. The first weakness aggravated the second. Because there’s no deposit requirement, the 12 month figure is just another request, not a firm deadline. The policy “strongly encourages” grantees to deposit their work in PMC “as soon as possible” after publication, but this is just an exhortation without sanction. OA proponents criticized the weakness of the new policy, while OA opponents criticized its remaining strength.
I was among the critics of its weakness, and remain one, but a policy can fall short of high expectations and still be a major step forward. The NIH was the first research funding agency, public or private, to encourage OA archiving for the research it funds. It was a good agency to go first: it funds medical research, which directly serves an urgent public need, and it’s very large. In fact, the NIH is the world’s largest funder of medical research, and its 2005 budget, at $28 billion, was larger than the gross domestic product of 142 nations. The NIH policy simply applies to more literature than any other single initiative is ever likely to cover —about 5,500 peer reviewed journal articles per month. It rightly focuses on OA archiving rather than OA journals. It allows grantees use grant funds to pay the processing fees charged by OA journals. And it completely avoids the pitfalls of the June 2003 Sabo bill, which would have put publiclyfunded research into the public domain without actually providing OA. The NIH approach, by contrast, provides OA to publicly-funded research without putting any into the public domain. Finally, as Elias Zerhouni, Director of the NIH, told the Washington Fax in January 2005, “[t]he fundamental breakthrough of this policy is…the fact that we’re creating for the first time the precedent and the right for a federal agency to have a venue or pathway for its scientists to…give access to the public.”
Because the policy doesn’t require compliance, the compliance rate has been very low. Because it allows embargoes of up to 12 months, most journals with a policy on NIH-funded authors require 12-month embargoes. However, there are three reasons to think that the NIH will soon strengthen the policy in both of the critical respects in which it fell short of the intent of Congress. The first is that the agency’s own Public Access Working Group (PAWG), appointed to advise it on implementing and improving the policy, recommended in November 2005 that the request become a requirement and the NIH impose a firm six-month deadline on public access. PAWG is advisory but its advice will carry weight with the NIH and Congress. The second and third reasons are two bills now pending before Congress: the CURES Act, which would be even better than the PAWG recommendation, and the Federal Research Public Access Act of 2005, which would be even better than the CURES Act. For details, see the next section. Before leaving this section, we should note the NIH’s other notable OA initiatives. The chief among them is PubMed Central (PMC), the OAI-compliant repository where the NIH asks its grantees to deposit their work.
10. Congress is currently considering two separate bills that would mandate OA to different bodies of publicly-funded research. Both would subsume the NIH. The American Center for Cures Act (called the CURES Act) was introduced in the U.S. Senate by Senator Joseph Lieberman on December 14, 2005. It would create a new agency within the NIH, the American Center for Cures, whose primary mission would be to translate fundamental research into therapies. In addition to creating and regulating the new Center, the bill contains a notable provision on public access. The act would mandate OA to NIH-funded research within six months of publication, and extend the same policy to all medical research funded by the larger Department of Health and Human Services, which embraces the NIH as well as the Centers for Disease Control and Prevention and the Agency for Healthcare Research. Over half of the non-classified research funded by the federal government is funded by the Department of Health and Human Services. The CURES Act would also fix a subtle but serious problem with the current NIH policy. The entire Department of Health and Human Services has a license to disseminate the results of HHS-funded research.
When drafting its public-access policy, the NIH acknowledged the existence of the license but chose to rely instead on publisher consent, which had the effect of accommodating publisher resistance. The CURES Act would rely on the pre-existing license and make publisher consent irrelevant. The Federal Research Public Access Act (FRPPA) was introduced in the Senate on by Senator John Cornyn in May 2006. It would mandate OA to nearly all federally-funded research within six months of publication. It would also rely on the government license rather than publisher consent. The FRPAA Act directs all major federal agencies that fund research to adopt OA policies within a year and lays down strong guidelines for those policies. For this purpose, an agency is major if its research budget is $100 million/year or more. Ten agencies fall into this category: the Environmental Protection Agency (EPA), National Aeronautics and Space Administration (NASA), National Science Foundation (NSF), and the cabinet-level Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, and Transportation. Both the CURES Act and FRPPA Act have bipartisan support in Congress, but as we go to press it’s too early to assess their chances. If the PAWG recommendation is adopted, or if either one of these bills is passed, then the world’s largest funder of medical research will have one of the world’s strongest OA policies.