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

From: Stevan Harnad <>
Date: Mon, 15 Sep 2008 08:10:31 -0400

Peter Suber wrote, in OA News :

> I agree that [a Deposit Mandate plus the "email
> eprint request" Button] would be a good fallback in the 
> (unlikely) event that the Conyers bill passes.  
> But I can't agree that it would "hasten universal 
> OA more effectively than the current NIH mandate" 

There are three issues here, not one! 

(1) Replacing the current NIH mandate with DM if the current mandate

(2) Adding DM to the current NIH mandate even if it is not defeated.

(3) And the question of what would have been the effect of adopting
in the first place.

On all three, I think the answer is very definitely that DM (whether
added or substituted) would hasten universal OA more effectively.
(And I actually think Peter would agree about all three of these; the
seeming disagreement may be just a verbal one.)

Note that what I said was that an NIH Deposit Mandate (Immediate
Deposit, with optional Closed Access plus the "Almost-OA" Button)
would hasten *universal* OA far more effectively than the current NIH
(Delayed OA-Deposit) Mandate.

I said *universal* OA because I was not referring merely to OA
for NIH-funded research, nor to the effect of the NIH mandate only on
NIH-funded research:

It is far easier for other funders and institutions to reach
agreement on
adopting Deposit Mandates of their own (Immediate Deposit of all
with the option of Closed Access and the "email eprint request"
during any publisher embargo) because that completely removes
concerns, publishers, and the publisher's lobby from the decision
loop. For embargoed articles, DM is merely an internal record-keeping
mandate, yet with the Button it can provide almost-OA -- and will
certainly lead to full OA once the practice becomes universal.

So the first reason an NIH DM would be (and would have been) more
effective is that, being free of legal obstacles, it is universally
adoptable. Many funders and even institutions have instead copied, or
tried to copy, the NIH Embargoed OA Mandate (with deposit mandated
*after* the publisher OA embargo has elapsed).

These legally encumbered mandates have either failed to be adopted
elsewhere altogether, because of unresolved legal concerns (I know of
many that have been under debate for years), or they have been
cloning the NIH model, with the loss of the opportunity for Almost-OA
during the embargoes (and an uncertainty about whether and when
actually takes place).

That is a loss of any mandate at all, in the would-be mandates that
failed to be adopted because of the avoidable copyright concerns, a
of a good deal of Almost-OA during the embargo periods for the
mandates, and continuing delay in reaching universal OA, for which
universal deposit is a necessary precondition!

So, yes, the NIH mandate would have been more effective, both for NIH
OA and for universal OA, if it had been a DM: It would have generated
immediate Almost-OA for NIH and more DMs worldwide. DM can still be
*added* to the NIH mandate now, whether or not the Conyers Bill
passes. If
Conyers fails, that will make NIH an Immediate DM plus Embargoed OA
Mandate -- which is much better than just an Embargoed OA Mandate. If
Conyers passes, then it will make NIH just an Immediate DM, which is
still better than no mandate for NIH, still provides Almost-OA during
embargo, and is far more conducive to consensus for universal

> The NIH mandate provides (or will soon provide) 
> OA to 100% of NIH-funded research, not OA to 63% and 
> almost-OA to 37%, 

If Conyers passes, then (as Peter agrees), DM is the right
Plan B. But even if Conyers fails, why not add DM to the
current NIH embargoed OA mandate, and have embargoed OA
to 100% of NIH-funded research *plus* immediate almost-OA
during the embargo (and a better mandate model for universal

> [Nor can I agree that] "there is no way to stop 
> [an NIH immediate DM plus the Button] legally". 
> ...if Congress wanted to, it could block closed-access 
> deposits too. 

Of course Congress can vote into law anything that the Supreme Court
does not rule unconstitutional and the President does not veto. But
it does seem a bit far-fetched to imagine either that Congress would
make a law that NIH could not require the deposit of a copy of the
publications it funds, for internal record-keeping purposes.

Nor does it seem likely that Congress would make a law that
could no longer send reprints of their research to researchers
requesting them, as they have been doing for a half century.

> However, I would like to see the NIH add the email 
> request button even if the Conyers bill goes down 
> in flames.  Then the policy would provide embargoed 
> OA to 100% of NIH-funded research, and almost-OA 
> during the embargo period.

I think we are in complete agreement! Substitute DM + Button for the
current NIH Mandate if Conyers fails, and add DM + Button even if it
succeeds. (But that doesn't just mean the Button: It means adding the
requirement to deposit immediately upon acceptance for publication.)

The only thing missing from this agreement is the one additional (but
crucial) further facilitator of universal adoption of DMs: The NIH
should specify that the preferred mode of deposit should be to
the postrint in the author's Institutional Repository (if there is
and port it automatically to NIH via the SWORD protocol.

On Sun, Sep 14, 2008 at 9:08 PM, Stevan Harnad <>

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

      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
      attempt to overturn the NIH Public Access Mandate, will

      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
      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
      Access when there is no publisher embargo on making it
      Access; otherwise it may be made Closed Access.

      (3) Open Access means that the full text of the deposited
      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 record-keeping.)

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

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

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

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

      (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

      (12) In addition, an NIH Deposit Mandate will encourage
      universities in the US and worldwide to adopt Deposit
      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 deposit.

      (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
      Repository, which can then export the deposit to PubMed
      using the automatized SWORD protocol.

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

      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

      It is only because we have been taking an obsolete,
      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
      research journal) writings: giving them away for free can
      be left
      to the individual author. The eventual outcome is
      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

      Stevan Harnad
Received on Mon Sep 15 2008 - 13:17:10 BST

This archive was generated by hypermail 2.3.0 : Fri Dec 10 2010 - 19:49:28 GMT