Re: Plan B for NIH Public Access Mandate: A Deposit Mandate

From: Stevan Harnad <amsciforum_at_GMAIL.COM>
Date: Sat, 13 Sep 2008 23:16:19 -0400

On Sat, Sep 13, 2008 at 10:14 AM, Michael Eisen <>

First, I don't think there's a serious chance that the Conyers
Bill will pass.

I hope you are right. It's an awful, shameful Bill, full of
contradictions and unthought-out consequences.

      But if it does, think about what it means. First, it
      means that Congress is willing to modify the U.S.
      Copyright Act to prevent open access.

That would be extremely bad -- but it would have no affect whatsoever
on Plan B. Plan B is for universities and funders to mandate
immediate deposit of all papers accepted for publication. This is a
record-keeping matter. It has nothing to do with copyright (or Open
Access). In fact, a Deposit Mandate is immune from publishers as well
as copyright law.

      Do you seriously think a) the the publishers - emboldened
      by their success in getting Congress to implement their
      will at the expense of the public - will let your
      alternative stand? Of course they won't. 

If Conyers passes, publishers will be emboldened to use copyright to
block making articles Open Access, because Congress will have given
them reason to feel emboldened. But Plan B is not an Open Access
Mandate, it is a Deposit Mandate.

      They will figure out a way to make what you propose
      illegal as well.

Please sketch for me what it is that you imagine that they will

(1) Do you think there is a way to make it illegal for an employee or
fundee to be required to deposit his own publications in his own
employer's or institution's archive [Closed Access] for
record-keeping purposes? 

(2) Do you think there is a way to make it illegal for researchers to
send individual reprints to individual requesters, as they have done
for five decades?

      And b) if the NIH is rebuked by Congress in this manner,
      they will not be willing to go against them.

I agree that the passage of Conyers would be a rebuke to the NIH that
would be an enormous shame and a long-lasting blight on Congress,
showing how it can be lobbied into direct opposition to the  public
interest (which is not, by the way, "public access to research," but
public benefits from research progress gained from researcher access
to research, and lost with researcher denial of access to research).

But it does not follow that NIH could not and would not fall back on
Plan B: to mandate Deposit, rather than Open Access.

If NIH does decide to wash its hands of the matter, that too would be
a great shame, but not the end of the world, for the real sleeping
giant in all this is researchers' institutions, the producers of all
that research output, whether NIH-funded or not. Institutions can and
will adopt Deposit mandates even if this congressional rebuke passes
and NIH decides it has had enough.

But I too hope the appalling Conyers Bill fails.

Let me close with my reply to another fellow-advocate of OA, who

      "I agree that a deposit mandate is a good fallback for
      the NIH in case publishers persuade Congress to adopt the
      [Conyers] bill.  But we'd be much better off if we could
      defeat the bill and keep the present deposit-plus-OA
      mandate alive."

I replied:

      I agree, but it's complicated. Here are the factors:

      (1) Yes, it is infinitely better if the Conyers bill is
      defeated, now that it's come to this.

      (2) But it would still have been better (all round, in
      UK, Europe, US) if the Immediate Deposit Mandate had been
      the default model from the very beginning, rather than
      the NIH Delayed-OA (D-OA) Mandate. We would have been
      far, far, ahead by now, and not facing all these needless
      delays and uncertainties, year after year.

      (3) No, I would not have preferred facing all this
      needless risk and uncertainty and delay in exchange for
      a possible eventual outcome that might defeat the
      publishers' challenge to a D+OA Mandate: The uncertainty
      and delay are definitely not worth it: The ultimate
      outcome (universal 100% OA) would then have been the same
      as with Deposit Mandates from the outset, but it would
      have been (and still will be) much faster with Deposit
      mandates. (If Conyers wins, then D-OA is D.O.A., at least
      at the US governmental level!)

      (4) But now that the publishers' interference has again
      been provoked, with Conyers, it would definitely be  far,
      far better if Conyers were defeated.

      (5) Yet even if Conyers is not defeated, it is a good if
      sad thing that this challenge arose, because even
      undefeated, this will force the fallback to the default
      Deposit Mandate, and that mandate will successfully
      propagate far, far faster than these D-OA mandates, which
      have been slavishly imitated elsewhere (and have delayed
      adoption of any mandate at all, where consensus could not
      be reached on D-OA because of "legal" concerns).

      (6) A Deposit Mandate is infinitely easier for reaching
      consensus on adoption than D-OA, because it is

      (7) So a Deposit Mandate should be the default option
      (but of course if you can get consensus on the adoption
      of a stronger mandate, such as Immediate, no-embargo-OA,
      or immediate-deposit, shorter-embargo OA, do!).

      (8) Since the blockages have consistently come at the
      governmental level (UK Select Committee, US Congress),
      another lesson is perhaps to prefer action at the
      university and individual-funder level, rather than the
      lobby-vulnerable governmental level.


On Sep 13, 2008, at 2:48 PM, Stevan Harnad wrote:

      [Apologies for Cross-Posting]

Re: "Bill Would Block NIH Public Access Policy" (Science,
11 September)

Conyers Bill:

Plan B for NIH Public Access Mandate (And It's Stronger
Than Plan A!): 
A Deposit Mandate

I hope the Conyers Bill, resulting from the publisher
lobby's attempt to overturn the NIH Public Access
Mandate, will not succeed. 

But in case it does, I would like to recommend making a
small but far-reaching modification in the NIH mandate
and its implementation that will effectively immunize it
against any further publisher attempts to overturn it on
legal grounds. And this Plan B will actually help hasten
universal OA more effectively than the current mandate:

      (1) NIH should mandate deposit of the
      refereed final draft of all NIH-funded
      research, immediately upon acceptance for

      (2) But access to that deposited draft need
      only be made Open Access when there is no
      publisher embargo on making it Open Access;
      otherwise it may be made Closed Access.

      (3) Open Access means that the full text of
      the deposited draft is freely accessible to
      anyone, webwide, immediately.

      (4) Closed Access means that the full text of
      the deposited draft is visible and accessible
      only to the depositor and the depositor's
      employer and funder, for internal
      record-keeping and grant-fulfillment
      purposes. (Publishers have no say whatsoever
      in institutional and funder internal

      (5) For all deposits, however, both Open
      Access and Closed Access, the deposited
      article's metadata (author, title, journal,
      date. etc.) are Open Access, hence visible
      and accessible to anyone, webwide. 

      (6) Now the essence of this strategy: NIH
      should also implement the "Email Eprint
      Request" Button, so that any would-be user,
      webwide, who reaches a link to a Closed
      Access article, can insert their email
      address in a box, indicate that a single copy
      of the postprint is being requested for
      research or health purposes, and click.

      (7) The eprint request is then automatically
      transmitted immediately by the repository
      software to the author of the article, who
      receives an email with a URL that can then be
      clicked if the author wishes to have the
      repository software automatically email one
      individual copy of that eprint to that
      individual requester.

      (8) This is not Open Access (OA). But
      functionally, it is almost-OA. 

      (9) Many journals (63%) already endorse
      immediate OA.

      (10) Closed Access plus the Button will
      provide almost-OA for the remaining 37%. 

      (11) That means an NIH Deposit Mandate
      guarantees either immediate OA (63%) or
      almost-OA (37%) for 100% of NIH-funded

      (12) In addition, an NIH Deposit Mandate will
       encourage universities in the US and
      worldwide to adopt Deposit Mandates too, for
      all of their research article output, not
      just NIH-funded biomedical research output.

      (13) The spread of such Deposit Mandates
      across institutions and funders worldwide
      will inevitably lead to universal OA for all
      research output eventually, once the mandates
      ensure the universal practice of immediate

      (14) In addition, because it makes the
      almost-OA Button even more powerful and
      easier to implement -- NIH should stipulate
      that the preferred locus of deposit is the
      author's own Institutional Repository, which
      can then export the deposit to PubMed Central
      using the automatized SWORD protocol.

The fact is (and everyone will see this clearly in
hindsight) that, all along, the online medium itself has
made OA a foregone conclusion for research publications.
There is no way to stop it legally. 

It is only technological short-sightedness that is making
publishers and OA advocates alike imagine that the
outcome is a somehow a matter of law and legislation. It
is not, and never has been. 

It is only because we have been taking an obsolete,
paper-based view of it all that we have not realized that
when authors wish it to be so, the Web itself has made it
no longer possible to prevent authors from freely
distributing their own writings, one way or the other.
There is no law against an author giving away individual
copies of his own writing.
And NIH need only mandate that authors deposit their
(published research journal) writings: giving them away
for free can be left to the individual author. The
eventual outcome is obvious, optimal and inevitable.

I strongly urge OA advocates to united under this back-up
strategy. It will allow us to snatch victory from the
jaws of defeat. 

Stevan Harnad

Michael Eisen, Ph.D. (MBEISEN_at_BERKELEY.EDU)
Howard Hughes Medical Institute
Associate Professor of Genetics, Genomics and Development
Department of Molecular and Cell Biology
UC Berkeley
Received on Sun Sep 14 2008 - 04:20:09 BST

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