Caveat Lector

So let’s pretend that Achaea University’s Dr. Helen Troia has an NIH grant to work on some innovative use for baskets in the treatment of heart disease or diabetes. Understanding the importance of grant compliance, she duly informs her publisher that she needs to place the final manuscript of her latest article in PubMedCentral to comply with the terms of her NIH grant.

Her publisher says “No, you may not do that.” There are several ways the publisher may express such a negative: an all-rights transfer, a policy of not accepting any kind of alteration (such as an author addendum or the NIH’s suggested language) to their standard publishing agreement, or plain old static from the editor.

Dr. Troia says, “But I have to, or I could lose further NIH funding!” Publisher shrugs and says, “Not my problem. Sign the agreement or we don’t publish. And no sneaky depositing your manuscript in PubMedCentral while I’m away, all right?”

What are Dr. Troia’s options at this point?

Let’s be clear on one thing: Dr. Troia has no power whatsoever to compel the publisher to accede to NIH’s requirements. None. The NIH public-access policy lays absolutely no onus on publishers to allow PubMedCentral deposit to happen; compliance requirements and penalties are entirely on the researcher and her institution.

Dr. Troia may be able to seek assistance from Achaea’s research office or library. Let us imagine that she does so. What can they do? They can read the copyright-transfer agreement, and offer their considered opinion that it is not in compliance with NIH policy. Great. Dr. Troia knew that already. They can call up the publisher on Dr. Troia’s behalf. They, like Dr. Troia, have neither carrot nor stick to wield; the publisher blows them off.

Now what?

Well, the logical thing is for Dr. Troia and her institution to turn to the NIH for help. Only the NIH isn’t offering any. Their advice, boiled down to words of one syllable, is “work it out.”

This is not good, folks. This is faculty backlash waiting to happen—and in all honesty, it’s not going to wait very long. This needs to be fixed.

Sure, in an ideal world, Dr. Troia would strike a noble pose, shake her fist at the evil recalcitrant publisher, and deliver a lengthy and passionate oration about openness being a scholarly value. In a slightly-less-ideal world, she would shrug and find another publisher, though let us remember that the signing of the publication/copyright-transfer agreement comes after editorial and peer review, so Dr. Troia has sunk a lot of time and effort at this point and quite reasonably doesn’t want it to be for naught.

Over here in the real world, Dr. Troia can’t afford to throw away a publication under any circumstances. She is going to be thoroughly hacked off at the NIH and her institution for not supporting her, and then she is going to throw up her hands, publish anyway, refuse to deposit, and tell her institution and the NIH (bowdlerized), “Work it out.” When the NIH policy comes up for re-authorization, or when FRPAA hits the legislative scene again, Dr. Troia will strike noble poses, deliver lengthy and passionate orations, and shake her fist—at Washington and open access.

Why is the publisher being evil and recalcitrant? Well, why on earth not? Neither Congress nor the NIH has told them not to. Individual researchers, librarians, research offices, and institutions can be stonewalled until doomsday. Publishers won’t be called to account for that, because nobody’s compiling a public list of evil recalcitrant publishers. Nobody’s even saying “being a recalcitrant publisher is evil,” much less “NIH researchers should not publish with recalcitrant publishers; here, use these folks instead.”

I understand the public relations behind the NIH’s decision to highlight nice publishers (the list of those who submit to PMC on behalf of authors), but I’m afraid that’s not enough. The public list of evil recalcitrant publishers needs to exist. I believe the NIH should compile and publish it, because they’re the other titan in this arena and their word counts for a lot, but if they can’t or won’t, those of us on the front lines should band together and do it ourselves. It’s not like we won’t be compiling private lists anyway—and a public list will eliminate a lot of redundant effort as well as serving notice to publishers that they can’t bully researchers with impunity.

SPARC, if the NIH were going to touch this they’d have done so already, so I think the ball’s in your court. Pick it up, please.