Rich Apodaca asks whether the new NIH OA mandate marks a new beginning, or more of the same. His argument hinges on the (admittedly unfortunate) phrase "in a manner consistent with copyright law", and he concludes that

Neither HR 2764 nor any form of government intervention will bring widespread Open Access into being.

Here's why I think Rich is wrong.

Point the first: Rich claims that

Most of the journals in question will be hostile to the idea of having their copyrighted material deposited into PubMed Central and so understandably won't allow it to be done by the authors of papers or anyone else.

The available data do not support this. Of the 355 publishers indexed by SHERPA/RoMEO, 66% formally allow self-archiving; more importantly, 56% formally allow archiving after refereeing. (There's a big gap between "formally allow" and "formally forbid", too.) The numbers are even more OA-positive at the journal level. Those publishers between them account for 10199 journals, of which 91% are at least "pale green" -- that is, allow at least preprint archiving. Well over 6000 journals, 62% of the total, are "green" -- that is, allow self-archiving of refereed postprints. You can use the web interface to find out whether your favorite journal or publisher will allow you to self-archive; here's a quick look at the big names (> 50 journals) and a few usual suspects (sorry about the jpg, I can't make html tables to save myself):





Point the second: Rich goes on to give the following hypothetical:

Professor Gross at California University gets his manuscript approved for publication in the Journal of Nanoscale Devices (JND). Professor Gross is fully aware both of HR 2764 and JND's refusal to deposit manuscripts into PubMed Central - the reasons why Professor Gross would choose JND anyway are interesting, but not relevant here. Along with the acceptance letter, JND requests prompt return of a signed copyright transfer agreement. Professor Gross sends in the signed form and from that point on, all rights to his article belong to JND. As is their policy, JND refuses Professor Gross permission to deposit a copy of his paper into PubMed Central within 12 months after publication.

Unless I'm missing something, neither Professor Gross nor JND have violated any laws.

Does Professor Gross have to publish in JND? Pace Rich, the good Professor's reasons are relevant. Let's take a look at those publication-related sins through an OA lens:

• Greed -- the OA advantage should drive the greedy to reject journals like JND which deny them the opportunity fully to profit from their own work
• Envy -- if you want your publication record to be all it can be, publish OA (either by choosing OA journals, or by self archiving)
• Pride -- if you want your science to have maximal impact, ditto
• Wrath -- STM publishing is big business with big fat profit margins; as consumers and producers, let's at least get value for money (i.e., OA) and put the hurt on greedy publishers who won't at least allow us to make our own work OA
• Gluttony, Lust -- see Greed, Envy, Pride
• Sloth -- for just a few keystrokes, you can increase your research impact and professional standing; why would you not?

Given all that, will the good Professor continue to kowtow before the little godlings who publish JND? Or will he simply find himself a journal that will play ball?

Point the third: Rich continues:

The assumption made by proponents of the new law seems to be that to implement the new policy, the Director of NIH will forbid publication by grant recipients in journals that don't allow deposition of articles into PubMed Central.

How many influential scientist do you know of who would tolerate the government telling them which journals they can and can't publish in? The minute such a misguided policy is put in place, the national scientific outcry would more than overwhelm anything Open Access proponents could muster.

How many? All of them. When a funder says "jump", even "influential" scientists say "Was that high enough? Shall I try again?". (Besides which, this is not "the government telling them" anything, this is a funding body making a reasonable demand.) Where scientists do have some weight to throw around is with publishers: the NIH can always get another benchmonkey, but publishers need a steady supply of authors. So if I want to publish in the Journal of Dodgy Results, which won't allow repository archiving, and the NIH says "not if you take our money -- not until they comply with the mandate", I can: look for other funding (believe me, there ain't a lot); fight authority (see Mellencamp, J.C., 1983); or I can try to get the editors of JDR to let me put a copy in PubMed Central after 12 months. Identifying the path of least resistance is left as an exercise for the reader.

Here again, the data (though scanty) are on my side. A 2005 survey of nearly 1300 authors found 81% of respondants reporting that they would willingly comply with a green OA mandate; a further 13% replied that they would comply unwillingly,and 5% claimed they would not comply. Not only is 94% a great deal better than the roughly 4% compliance observed while the NIH policy was voluntary, but I've got five bucks right here that says those 5% are full of it. If push comes to shove, they won't be handing back any grants or handing in any letters of resignation. Most of them, confronted with the evidence, will do what scientists are supposed to do in such cases: say "oh, I was wrong", and change their views and behaviour. The few who don't do that will still comply, they'll just yell at a couple of editors to make themselves feel all tough again.

(Stevan Harnad and Alma Swan have both reported that Arthur Sale's ongoing study of institutional repositories in Australia corroborates these figures, showing that authors comply in much the same way that they claimed they would in the survey. What I've seen of Sale's data is certainly consistent with that notion... but more on that later perhaps.)

So, to recap:

1. The majority of journals for which information is readily available are already compliant with the new NIH mandate; I see no reason to assume that any significant proportion of the remainder will be hostile to the policy.

2. I disagree that the NIH will not be able to enforce the policy; faced with the evidence that OA is a good idea and the fait accompli of an NIH mandate, researchers will comply and journals will have to follow suit. To believe otherwise is, I think, to give the publishing industry too much credit for being able to cow their authors.

3. Voluntary reposit policies simply don't work; we have evidence to suggest that mandates will, and already do. (An aside: the new NIH policy joins 20 funder mandates, 11 institutional mandates, 3 departmental mandates, 5 proposed funder mandates, 1 proposed institutional mandate and 2 proposed multi-institutional mandates. Most of those include growth data in their ROARMAP entries. Why don't we have more data on the effects of mandates?)

Happily, I can finish up on a note of agreement with Rich, who says:

The only things that will change the status quo are: (1) the availability of tools for making it happen; and (2) the realization by individual investigators that continuing to give away their hard-earned copyright makes them far less competitive than their peers who don't.

Open Access proponents should forget about getting the Federal Government to fix the mess that modern scientific publication has become. Instead, they should focus on making Open Access-like options more attractive to scientists.

I've outlined my disagreements above, now let me agree with the more important points here:

1. It is vitally important that tools for OA (and Open Science) be built -- tools that researchers will want to use; to see a graphic illustration of this, listen to the forlorn cry of the repository-rat

2. OA provides a host of benefits, not least the boost to individual impact and standing; the clearer this becomes, the closer we get to 100% OA

3. Modern scientific publishing is a mess, and needs fixing. Making OA more attractive to the benchmonkeys is going to be an indispensible part of that fix (see also #1).

P.S. still on hiatus... sorta. Still haven't put that ms together so posting will remain infrequent at best.

P.P.S. see also Peter Murray-Rust's response to Rich's entry.