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    The Publisher's Pushback Against NIH's Public Access And Scholarly Publishing Sustainability
    By John Willinsky | January 27th 2009 10:00 AM | 9 comments | Print | E-mail | Track Comments
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    John Willinsky is Khosla Family Professor of Education at Stanford University and director of the Public Knowledge Project at Stanford, the University...

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    The dying light of the George W. Bush presidency was marked by, among other things, a legislative move to derail recent gains in the federal government's opening of science. In particular, the innocuous sounding “Fair Copyright in Research Works Act” (HR 6845) introduced into the House by John Conyers, Jr. (DEM-MI), on 9 September 2008 [1] was poised to shut down the National Institutes of Health (NIH) Public Access Policy [2], as well as forestall the spread of this open-access spirit to other areas of federally sponsored research and scholarship. Hearings were held, but the bill did not make it through the House.

    End of story? Not quite.

    Certainly, the Obama presidency promises, among so many things, an improved regard for science. Yet I can't help but agree with Peter Suber's prediction that Congress will see the likes of the Fair Copyright in Research Works Act again, though perhaps not from Conyers, who was an early supporter of Obama [3]. The back story on this bill is complicated by the publishers executing an about-face on “archiving rights,” which they have traditionally supported, but it speaks to a larger battle underway that has everything to do with the public standing of research and scholarly work.

    Conyers' bill, with strong backing from both the profit and nonprofit scholarly publishing organizations, would preclude federal agencies from retaining any claim on research articles in which the work had been government funded, specifically targeting any right that “involves the availability to the public of that work” [1]. What is held to be “unfair” in the bill is government interference with the publisher's exclusive ownership over research. This is not, however, a case of keeping the government's clumsy hand off a free market. The scholarly publishing market depends on government interference in the first instance. The government allows publishers to exercise monopoly rights over this research through copyright law, a form of market interference warranted by the works' contribution to “the progress of Science and useful Arts,” as the United States Constitution puts it [4]. And if that were not enough, the government also funds directly and indirectly the production, authoring, and reviewing of the content.

    What the NIH's Public Access Policy—which had been supported by no less than 33 Nobel Prize laureates, the Taxpayers Alliance for Access, and leading research libraries—had established was a public exception to that monopoly. It was a trade-off that protected the initial intent of the constitutional sense of copyright, as greater access contributes to the progress of science and such useful arts as medicine.

    What is strangely amiss in the publishers' support for outlawing the NIH Public Access Policy is that they support the upshot of this initiative with their own current copyright policies. While a growing number of open-access journals provide immediate access to the published version, even subscription-based publishers had originally been happy enough to grant authors the right to do what they were already doing, which was putting PDFs of their articles up on their websites. Still, it was not long before the publishers began to limit authors' archiving rights, imposing an embargo period of perhaps a year following publication after which the author is permitted to archive the final peer-reviewed draft (rather than the published version) [5]. Now, as indicated by their support for the Fair Copyright in Research Works Act, publishers are taking a stand against archiving. As the International Association of STM Publishers recently put it, “publishers do not believe that self-archiving offers a sustainable alternative for scientific publishing” [6].

    One reason for the publishers' change of heart is that archiving is catching on, amid growing public expectations that research is a public good that should be made freely available online. Research libraries are setting up dedicated archives for just such purposes. Funding agencies, foundations, and institutions are putting in place policies supporting archiving as a duty and point of pride. Still, when the NIH established its Public Access Policy in April of 2008, the terms carefully reflected the publisher's own archiving policies. Authors were asked to deposit the “final peer-reviewed manuscript” in PubMed Central on publication, which would then be made public no later than 12 months after publication [2]. In this way, the subscription-based publishers had forestalled open access in any strict sense, by ensuring that the public and health professionals had decidedly second-class access to this work.

    Yet that wasn't enough to allay the concerns of the publisher associations. Having won archiving restrictions, which were designed to protect the value of journal subscriptions—both for immediacy and accuracy of access—they have decided that archiving policies are a threat in principle. In testifying last September in support of the bill before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary, Martin Frank, Executive Director of the American Physiological Society (APS), insisted that the issue was not access rights but revenue streams [6]. The NIH mandate, he argued, “risks undermining the revenue stream derived principally from subscriptions, that enables publishers to add value to research articles and to enhance readers' ability to discover and use scientists' work.” Publishers report that they are adding as much as US$4,000 value to a research article, while holding that only by virtue of exclusive ownership of this public good can they see their way to an adequate return on investment, in a case of the tail having to own the dog in order to wag it [7].

    Frank's stance makes it clear that access itself it not the issue. After all, APS's 17 journals already make their contents free after 12 months, contributing to Highwire Press' 2 million freely available articles, exceeding the terms of the NIH mandate (as APS makes the final published version freely available). By the same token, the 73 nonprofit publishers that belong to the DC Principles Coalition, on whose behalf Frank was also speaking, are all about “free access to science,” as its website makes clear (http://www.dcprinciples.org/). What matters, then, as Frank pointed out, was that APS “can modify [its current free access policy] should 12 months prove disadvantageous to the Society's business model” [6]. The point was reinforced by the International STM Publishers Association, who declared in their letter of support for the Fair Copyright bill their concerns regarding embargoed archiving's “potential for harm to scholarly communication” [8]. The association made it clear that its members supported “all business models – all models that ensure continuity and sustainability of the journal model that have brought such significant insight and information to the scientific community.”

    For STM publishers, the NIH mandate “puts at risk a system which has enabled more research to be available to more scientists in more countries than at any point in the history of science” [8]. But is the opposite not true? To insist that the current publishing economy must be sustained places the system at risk, and all the more so amid the current economic downturn, which is bound to affect research library budgets in the coming year. The point has been brought home by Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition (SPARC), who testified in opposition to the Fair Copyright bill on behalf of the leading research libraries, which can not sustain subscriptions to as many journals as they would like: “This situation [in which libraries can afford access to only a portion of the literature] is exacerbated by the continued rapid escalation in price of journal subscriptions, which puts libraries in the position of having to cancel subscriptions” [9].

    At the root of the problem is the current cost of access to knowledge and how those costs have come to differ so radically from journal to journal that one has to wonder about whether the progress of science is being served. This is the result of the scholarly publishing economy that emerged during the last half of the twentieth century. In that time, the commercial scholarly publishers adeptly served the greatly expanding scale of government-sponsored research by providing many new journal titles in new areas that soon became a critical part of scholarly communication. It was a move that also enabled commercial publishers to run subscription prices up each year well over the rate of inflation, with some nonprofit societies following suit. The result is a publishing system in which subscription prices no longer correspond to the quantity or quality of the work. The price per page charged by commercial publishers averaged six and seven times that of nonprofit society publishers across a number of disciplines in one study of journal subscriptions pricing [10]. This is not only about profits and surpluses, but about publishing practices that have been built up around these different structures over some time. If this current stratified economy had not been deemed unsustainable by those footing the bill, we might leave it at that. But some level of public accountability seems in order for a new digital age that holds such promise for universal access to knowledge, with one group of publishers exploring open access options with article processing fees in the area of US$3,000, while a new class of open-access journals takes advantage of open source software and new institutional capacities to publish peer-reviewed work without charge to either reader or author [11].

    Which is only to say that the real battle for the future of science is not about NIH's provision of delayed access to author's drafts. It is about efforts to protect unsustainable revenue streams amid the capitalization of a public good to a degree that arguably undermines what is basic to the progress of science and useful arts. If the publishers' exclusive ownership of this body of work enables them to charge what they will, on their own terms, then what is at risk is the delicate-at-best balance between public interests in such learning and private investments in bringing it to the widest possible audience.

    The NIH Public Access Policy stands as an expression of interest in righting the imbalance. It is a transition point, a step toward establishing a new economy of openness for the progress of science. No one has made that more clear than NIH director Elias A. Zerhouni in his testimony against the Fair Copyright bill [12]. Zerhouni spoke of how the digital revolution in the life sciences has led to far greater data and knowledge production, largely based on openly sharing genetic information and related sources through federally financed services, such as the National Center of Biotechnology Information (NCBI). And in terms of the contribution made by the NIH Public Access Policy, he reports that “400,000 users are accessing 700,000 articles every day” in PubMed Central [12].

    Zerhouni spoke, as well, of public interest in this knowledge, pointing to how the majority of patients now turn up at the doctor's office having visited medical Web sites. This interest in access to knowledge is bound to spread to the other professions and their clients as well. Publishers, who could once count on no one giving a second thought, least of all researchers, to transferring to them the copyright for the entire research corpus, article by article, should have sufficient vision to see that a new civil rights issue is emerging over access to, as well as control over, such knowledge.

    Now may be the time to step back from these time-consuming legislative skirmishes over who should determine rights of access to this knowledge. What makes far more sense at this point, as we move into a new publishing medium, is for journal publishers, scholarly societies, and research libraries to come to the table, to rethink cost structures, to collaborate on publishing platforms and systems, and to explore new ways of justifying, rationalizing, and allocating what is well over a US$7 billion investment in the circulation of knowledge (to use the figure for STM English-language publishing alone) [13]. What is needed are ways to maximize the progress of science and the useful arts as a function of their openness and public place.

    You may find the prospects of such coordinated and cooperative approaches to advancing this public good hopelessly naive, even in this time of renewed hope and economic reconstruction. If so, then I can only advise constant, if not increased, vigilance on behalf of those with an interest in the openness of science. It will be a long road forward of strategic incremental measures, such as the NIH Public Access Policy, with carefully orchestrated counter-measures, even as a number of us within the academic community seek ways to extend this vision of public access to all that we do in the name of research and scholarship.


    Funding. The author gratefully acknowledges the support of the Pacific Press Endowment at the University of British Columbia and the Kholsa Family Professorship of Education, Stanford University.

    Competing interests. The author reports the following nonfinancial conflicts of interest: JW directs the Public Knowledge Project, which develops open source software for managing and publishing scholarly journals, and is publisher of Open Medicine.


    1. Fair Copyright in Research Works Act (Introduced in House) (H.R. 6845). Library of Congress Available: http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.6845:. Accessed 15 December 2008.

    2. NIH Public Access Policy (2008) The National Institutes of Health Public Access U.S. Department of Health and Human Services. Washington, DC: Available: http://publicaccess.nih.gov/. Accessed 15 December 2008.

    3. Suber P (2008) Predictions for 2009. Open Access Newsletter 128. Available: http://www.earlham.edu/~peters/fos/newsletter/12-02-08.htm#predictions. Accessed 15 December 2008.

    4. Constitution of the United States, Art 1, § 8. Available: http://www.law.cornell.edu/constitution/constitution.articlei.html. Accessed 15 December 2008.

    5. [No author listed] (2008) Publisher copyright policies&self-archiving, SHERPA/RoMEO, University of Nottingham. Available: http://www.sherpa.ac.uk/romeo/. Accessed 15 December 2008.

    6. Frank M (2008) Testimony before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary on: H.R. 6845, the “Fair Copyright in Research Works Act.” Washington, DC. Available: http://judiciary.house.gov/hearings/pdf/Frank080911.pdf. Accessed 22 December 2008.

    7. [No authors listed] (2008) An Overview of scientific, technical and medical publishing and the value it adds to research outputs Oxford, UK: International Association of Scientific, Technical and Medical Publishing. p 11. Available: http://www.stm-assoc.org/documents-statements-public-co/2008-04%20Overview%20of%20STM%20Publishing%20%20Value%20to%20Research.pdf. Accessed 15 December 2008.

    8. Mabe MA (2008) Letter to Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary International Association of STM Publishers. Oxford UK: Available: http://www.stm-assoc.org/documents-statements-public-co/2008-04%20Overview%20of%20STM%20Publishing%20%20Value%20to%20Research.pdf. Accessed 15 December 2008.

    9. Heather J (2008) Testimony before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary on: H.R. 6845, the “Fair Copyright in Research Works Act.” Washington, DC Available: http://judiciary.house.gov/hearings/pdf/Joseph080911.pdf. Accessed 15 December 2008.

    10. Bergstrom CT, Bergstrom TC (2004) The costs and benefits of library site licenses to academic journals. Proc Natl Acad Sci U S A 101: 897–902. Find this article online

    11. Willinsky J, Murray S, Kendall C, Palepu A (2007) Doing medical journals differently: Open Medicine, open access, and academic freedom. Can J Commun 32: 595–612 Available http://pkp.sfu.ca/files/CJC32.4_Willinsky.pdf. Accessed 15 December 2008. Find this article online

    12. Zerhouni EA (2008) Testimony before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary on: H.R. 6845, the “Fair Copyright in Research Works Act.” Washington, DC. Available: http://judiciary.house.gov/hearings/pdf/Zerhouni080911.pdf. Accessed 15 December 2008.

    13. Ware M (2006) Scientific publishing in transition: An overview of current developments Bristol, UK: Mark Ware Consulting. Available: http://www.stm-assoc.org/storage/Scientific_Publishing_in_Transition_White_Paper.pdf. Accessed 15 December 2008.

    Originally published in PLoS Biology.  Reprinted with permission.

    Citation: Willinsky J (2009) The Publisher's Pushback against NIH's Public Access and Scholarly Publishing Sustainability. PLoS Biol 7(1): e1000030 doi:10.1371/journal.pbio.1000030


    Great editorial.

    I liked your point that these private journals mostly run on publishing publicly funded research to begin with. Moreover, consider who usually pays for their subscription services: Libraries and universities, many of which are publicly funded anyway. Even in the case of private universities, they're indirectly receiving public funds thru student loans (which is one reason why tuition costs are getting out of hand). In this sense, we've truly gone full-circle. Then again when you consider the need to publish in order to continue your career or get grants, it's more like a figure-8.

    The difficult situation speaks to the broader difficulty of determining supply & demand in public research. In a sense, the government has a much broader loop going on, by financing researchers thru public high education & student loans, & then funding them thru federal grants. I'm not sure if I'd formally object to this way of doing things, but it has always struck as...I can't put my finger on it...a bit fishy, or insular, or self-congratulatory.

    Heck, I pay full price for all of these and I still pay more in taxes than most people.   So it's a double whammy to pay taxes for the research and then $150 per magazine per year to read about it.  :)

    But, in some good open access news,   UC libraries and Springer sign pilot agreement for open access journal publishing, so researchers at all 10 UC campuses who publish in Springer journals will be open access from moment one, which happened a day after he published this here.   Coincidence?  Sure, if that helps ...
    Two of the best points you make in this piece bear repeating:

    The result is a publishing system in which subscription prices no longer correspond to the quantity or quality of the work.
    Nature and Science are cheaper than many journals that offer lower quality papers. I'm not suggesting that Nature and Science always publish the highest quality stuff, but many obscure journals owned by Elesevier, for example, that publish very limited0 interest stuff and cost a fortune to subscribe to.

    Another important point you make is about author rights. Leaving public access aside for a moment, it rankles me that some journals have tried to limit the authors' access to their own research, not just on websites, but in other areas of scientific communications (such as use of the authors own papers in a class). Publishing science papers isn't like publishing a novel - the primary idea isn't to make money (and in fact science authors, unlike novelists, don't get paid at all for their publications); it's to communicate science. Of course a publisher has to stay solvent (if its a non-profit), or even make money (if its for-profit), but that should not happen at the expense of the original mission of science publication.
    "science authors, unlike novelists, don't get paid at all for their publications"

    Just to offer the alternative view tho, authors are highly rewarded for these publications by gaining more leverage in earning future research grants, and also in overall prestige. They are paid for these articles, it's just in a very indirect manner. But herein may lie the problem: If an author posts their original research on a website like this one, it's better for the scientific community, but it's certainly not going to impress any grant sponsors in the future. Would you call this a prisoner's dilemma? One last wrench to throw in however is that of differentiation: In theory peer-review journals do differentiate between articles, rejecting some and accepting others for good reasons, and those who make the selections are usually rightly compensated for this. One worry with open-access - it might just be a hypothetical one - is that it would err on accepting, and in a sense rewarding, even more research regardless of its quality.

    You're right, authors are rewarded for their publications, partly through salary - I shouldn't have said "at all" in my sentence. And I'm not suggesting that they should be paid directly - I think reputation and salary are fine rewards.

    With the indirect payment received by authors (and in fact the only direct payment is frequently from the authors to the journal, in the form of page charges), scientific publications stand out from other publications, and I wonder if that has weird effects on the business models used in science publication.
     If an author posts their original research on a website like this one, it's better for the scientific community, but it's certainly not going to impress any grant sponsors in the future. Would you call this a prisoner's dilemma?
    There is an old school mentality at work, to be sure, but that is slowly changing.   I don't think a committee is going to look down on a publication in PLoS Biology even though it is not a print journal.     You can bet print media hates all of us in a way that only makes sense if your livelihood and business model relies on the status quo so they like to feed the 'online is lower quality' perception.
    But open access leads to more citations, which is the real metric used by committees, or it doesn't.   :)

    I don't think a committee is going to look down on a publication in PLoS Biology even though it is not a print journal.
    Committees are happy with PLoS Biology papers, but they don't value papers only posted on a personal web site or in a place like Nature Precedings. Print vs online, or commercial vs. non-commercial generally doesn't matter  in the eyes of funding committees, but peer-review is still viewed as critical, and that mindset isn't likely to change in the near future.

    My personal view is that in many cases, the peer-review isn't stringent enough, and a lot of shoddy science gets published. Grant reviewers and hiring committees already don't do more than glance at an applicant's published papers in most cases, because of time constraints.  If people could pad their CVs with non-peer-reviewed manuscripts put up on their websites, it would make a tough situation worse.

    Peer-review goes wrong sometimes (it recently did for me, in a very blatant way), but in most cases it makes papers better. It is often the first time your work gets exposed to people outside of your department circle and critically read by people who don't share your (and your department's) general way of looking at problems.
    I think you're right in pointing towards the discrepancy between peer-review journals & commercial ones like Science. As peer-review journals have become narrower in scope, their articles become even less readable to not only the general public, but also to scientists in related fields - which is just another reason atop price for why science has become less accessible to the public. Come to think of it, this effect in readability may be larger than that of subscription prices, because it erects higher barriers between disciplines. Hopefully if we get more open-access, there'd be more of a market for commercial scientific journals - call them quasi-technical - which would publish more readable articles (eg, that connect the dots across various studies). Consider that the vast majority of other private magazines flourish not by publishing original research or news, but by running well-written and investigated articles.

    But I think that a large twist relates to demand for public research *after* it’s completed: Where does it come from? In private R&D, there’s no need for additional peer-review journals, b/c the research is being conducted for a clear purpose. So then what about research that isn’t conducted for profit? Where does it go and how do you rate its quality? The peer-review journal system seems to be the answer, albeit an unsatisfying clunky one. I’m just thinking aloud here, but an extreme alternative view would be that we should only conduct research in the form of R&D, ie with a specific profit-making end in mind. If this were the case, then there’d be much less or no need for peer-review.

    Just one more thought, the notion that open-access would create more of a market for commercial scientific journals is b/c it would necessarily expand its audience. One of a few reasons why subscriptions to peer-review are so expensive is b/c as is, they're appealing to a very narrow and select audience. A braoder audience - perhaps even just relative to the scientific community rather than the public at large - would lower prices substantially.