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New U.S. Federal Policy on Access to Publicly Funded Research - Publications and Data

By Ellen Paul


The White House has ordered federal agencies to develop plans to increase public access to federally funded research, including literature and data. How will this affect you and your scientific society? Read on...
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On Friday, 22 February 2013, the White House issued a memorandum that sets out the federal government’s requirement for public access to data generated by federally funded scientific research. This policy is the outcome of years of discussion among federal agencies, scientific societies and publishers, various representatives of the public such as patients’ advocacy groups, and others. Originally called "open access" the basic concept is that all scientific literature should be freely available to anyone who wants to read it. The call for a government policy is based on the notion that taxpayer funded research should be available to the taxpayers.

The discussion bounced between the Administration and the Congress as the public access advocates pushed for legislative mandates and the scientific community urged the development of a balanced policy that would take into account the intellectual property rights of researchers, the financial realities of scientific publishing, especially by nonprofit scientific societies, and the interests of the public.

In September 2004, the National Institutes of Health (NIH) enthusiastically took the lead as the first federal agency to develop a public access policy. At the time, the Ornithological Council and other scientific societies pointed out the probable impact on scientific publishing and the nonprofit societies and encouraged the NIH to avoid a “one-size-fits-all” policy, but to instead create a more flexible policy that would mitigate the negative consequences of mandated public access. The D.C. Principles for Open Access – a consortium of nonprofit scientific societies – has continued to support the concept of public access but in a way that does not jeopardize the revenues of scientific societies that rely on those funds to publish their journals. Meanwhile, the NIH policy found its way into a legislative mandate in 2008 by virtue of language in the Consolidated Appropriations Act of 2008, which provided that, “all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.”

In reauthorizing the America COMPETES Act in 2011, Congress directed the White House Office of Science and Technology Policy to establish a working group under the National Science and Technology Council with the responsibility to coordinate Federal science agency research and policies related to the dissemination and long-term stewardship of the results of unclassified research, including digital data and peer-reviewed scholarly publications, supported wholly, or in part, by funding from the Federal science agencies.

The memorandum issued on 22 February 2013 resulted from this Congressional directive. It declares that the “Administration is committed to ensuring that, to the greatest extent and with the fewest constraints possible and consistent with law and the objectives set out below, the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community. Such results include peer-reviewed publications and digital data.” This commitment is reflected in a mandate to the federal agencies to submit its draft plan to OSTP within six months. The guidance for these plans make clear that, “To the extent feasible and consistent with law; agency mission; resource constraints; U.S. national, homeland, and economic security; and the objectives listed below, the results of unclassified research that are published in peer-reviewed publications directly arising from Federal funding should be stored for long-term preservation and publicly accessible to search, retrieve, and analyze in ways that maximize the impact and accountability of the Federal research investment.” However, agencies must also describe the measures they will take to prevent the unauthorized mass redistribution of scholarly publications, after ensuring that ensuring that the public can read, download, and analyze in digital form final peer-reviewed manuscripts or final published documents within a time-frame that is appropriate. Where appropriate is defined as a 12-month post-publication embargo.

Moreover, the plans are to provide for the sharing of digitally formatted scientific data generated by research funded by the federal government, NOT to include laboratory notebooks, preliminary analyses, drafts of scientific papers, plans for future research, peer review reports, communications with colleagues, or physical objects, such as laboratory specimens. The plans must protecting confidentiality and personal privacy; recognizing proprietary interests, business confidential information, and intellectual property rights and avoiding significant negative impact on intellectual property rights, innovation, and U.S. competitiveness; and preserving the balance between the relative value of long-term preservation and access and the associated cost and administrative burden.
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