[Submitted on behalf of Provost Hume by Gary Lawrence, Director, Systemwide Library Planning, University of California, (510) 987-9461, gary.lawrence@ucop.edu] May 30, 2008 Dr. Norka Ruiz Bravo Deputy Director, Extramural Research National Institutes of Health Building 1 - Shannon Bldg, 144 1 Center Dr Bethesda, MD 20892 Dear Dr. Bravo: I am pleased once again to write on behalf of the University of California in support of the National Institutes of Health Public Access Policy (NOT-OD-05-022) as revised by the NIH Guide for Grants and Contracts (NOT-OD-08-033) to comply with the provisions of Public Law 110-161. On September 24, 2007, I wrote to Senator Feinstein to convey the University's support for the legislation leading to the establishment of the current policy, and the reasons for our position remain valid; the text of that letter is appended here. As the requirement to deposit the final peer-reviewed manuscripts of articles resulting from NIH-supported research only went into effect on April 7, the University has only limited experience upon which to base comments regarding the policy and its implementation. I would, however, like to summarize the steps that have been taken both at the ten UC campuses and on a systemwide basis to support compliance with the NIH public access policy, and then remark on some concerns that have arisen in our experience to date. Finally, I will address the three specific questions posed by NIH in this request for comments. At both the systemwide and campus levels, the University has taken significant steps to inform our campus communities about and to support compliance with the NIH policy. UC's planning and action has involved broad and effective collaborations among offices of research administration, research policy, academic health science research, libraries and others. In our limited experience to date with implementation of the NIH policy, we have heard of problems and expressions of concern in the following areas, and urge NIH to develop tools and informational resources to address these: * How to deposit, including how to use the deposit tools provided by NIH, and clarification of the respective responsibilities of the author(s) and the Principal Investigators. * What to deposit, including more expansive information about which version of the work to deposit, and clarification of the applicability of the policy with respect to the funding year for the supporting grant. In this regard, we note that NIH's own documents conflict with one another: the Policy says that it applies to all articles arising from NIH funding that are accepted for publication on or after 4/7/08, but the FAQ has a further limitation to articles that arise from FY08 funding. * How to identify, control and manage the multiple versions of works; we continue to hear continued expressions of concern and uncertainty about the existence of multiple versions In addition to these specific concerns, UC continues to be deeply concerned about a significant and fundamental structural issue: the current policy does little to address underlying complexities associated with the loosely-coupled roles of authors, Principal Investigators, institutions, and publishers. This situation gives rise to several problems that the University has experienced in the early days of implementation of the policy. For example, publishers are under no obligation to assist, or even permit, authors to retain the rights needed to deposit their manuscripts in PMC in compliance with the policy, and the authors' institutions generally have neither the legal standing nor the means to intervene. The ambiguity about rights is amplified by the fact that publishers have a variety of practices that relate to NIH compliance: some automatically deposit either the final published article or the author's final peer-reviewed manuscript in PMC, others have publication agreements that permit the authors to deposit, others authorize compliance only through the mechanism of an optional "author pays" publication agreement, yet others provide unrestricted open access to all their publications, and so on. The requirement to track the details of this complex environment, to respond correctly for each NIH-sponsored publication, and to deal with the situations where the necessary rights are unavailable, or only available for a fee, gives rise to most of the implementation problems UC has experienced to date and imposes a substantial administrative burden on the NIH, on grantee institutions, and on NIH-supported researchers. We note further that confusion on this point is likely to have its greatest effect on younger researchers who may be disproportionately disadvantaged when the most prestigious publisher in their field does not comply with the Policy, and that the unresolved ambiguities may lead more publishers to offer "author pays" models as a means to comply with the policy, unnecessarily diluting the funding available to directly support research and forcing authors to confront yet another difficulty when publication occurs after the award period. UC therefore strongly recommends that NIH address this problem by establishing a systematic program, working with publishers and institutions, to define a single, simple model that facilitates and supports deposit of NIH-sponsored works in PMC. The submission of Anthony De Crappeo, on behalf of the Council on Governmental Relations, on May 28, 2008, expresses concerns similar to those of UC and reaches a similar conclusion. The University of California has extensive relationships with most major biomedical publishers, both as a purchaser of journal publications, and, through its faculty, as a supplier of the work that they publish. UC is willing to work with NIH and like-minded peer institutions to plan and implement such a program. In addition to the observations recounted above, UC would like to respond to the specific questions set out by NIH in its request for comments. 1. Do you have recommendations for alternative implementation approaches to those already reflected in the NIH Public Access Policy? As discussed above, to reduce the administrative burden and confusion resulting from the varied and uncoordinated roles of authors, PIs, institutions and publishers in ensuring compliance with the NIH public access policy, UC strongly recommends that NIH undertake a systematic program, working with publishers and institutions, to develop a consistent and streamlined procedure for deposit that addresses rights questions and other implementation issues and can be used by all NIH-funded PIs without reference to the specific policies and practices of individual journals and publishers. UC would be glad to work with NIH and interested peer institutions to develop and implement this. 2. In light of the change in law that makes NIH's public access policy mandatory, do you have recommendations for monitoring and ensuring compliance with the NIH Public Access Policy? The development of the simplified procedures described above would represent a great stride in reducing barriers to compliance for PIs and institutions and consequently would significantly diminish the need for case-by-case monitoring. In addition, in view of the complexities discussed above, we believe it important for NIH to acknowledge that full implementation of the policy and associate compliance measures will require an extended period of transition from current practices. It will be important not only to provide clarifications that will be helpful to investigators and their institutions, as suggested in the response to item 3 below, but to provide assurances that any penalties for non- compliance will not be unreasonably applied as long as significant uncertainties remain. 3. In addition to the information already posted at http://publicaccess.nih.gov/ communications.htm, what additional information, training or communications related to the NIH Public Access Policy would be helpful to you? Simplification would greatly reduce operational complexity and therefore the burden that must now be borne by NIH and institutional information, training and communication activities. In addition, as noted above, we recommend that NIH develop tools and informational resources addressing: o How to deposit, including how to use the deposit tools provided by NIH, and clarification of the respective responsibilities of the author(s) and the Principal Investigators. o What to deposit, including more expansive information about which version of the work to deposit, and clarification of the applicability of the policy with respect to the funding year for the supporting grant. In this regard, we note that NIH's own documents conflict with one another: the Policy says that it applies to all articles arising from NIH funding that are accepted for publication on or after 4/7/08, but the FAQ has a further limitation to articles that arise from FY08 funding. o How to identify, control and manage the multiple versions of works; we continue to hear continued expressions of concern and uncertainty about the existence of multiple versions The University of California is a committed participant and leader in research in all fields, and views the widest possible dissemination of research results as an essential foundation for effective research and teaching. For this reason, we fully support the NIH policy, and appreciate the opportunity to help identify ways to make it stronger and more effective. Yours truly, Wyatt R. Hume Provost and Executive Vice President Academic and Health Affairs University of California cc: President Dynes President-Designate Yudoff Executive Vice President Lapp Vice President Beckwith Vice Provost Greenstein Vice Provost Justus Assistant Vice President Sudduth ================= Attachment ================= September 24, 2007 The Honorable Dianne Feinstein United States Senate 331 Hart Senate Office Building Washington, D.C. 20510-0504 Dear Senator Feinstein: On behalf of the University of California, I write in support of Section 221 of S.1710, the Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act of 2008. Section 221 directs the National Institutes of Health (NIH) to change its Public Access Policy requiring all investigators funded by NIH to submit an electronic version of their final peer-reviewed manuscripts to the on-line archive of the National Library of Medicine's PubMed Central (PMC), which would then make the manuscript available within twelve months of the official date of publication and in a manner consistent with copyright law. An identical provision is included in the FY 2008 LHHS bill approved by the House in July. This change in research publication policy was requested by NIH to achieve goals that are shared by UC health scientists and by researchers worldwide: to expand use of NIH research findings in the advancement of science and public health, enhance management of NIH's invaluable research portfolio and provide for a timely, sustainable and openly accessible archive of research results arising from the substantial investments of U.S. taxpayers, and of public and private institutions where that research is conducted, including the campuses of the University of California. The provision maximizes research impact and dissemination of new knowledge and appropriately recognizes and preserves the integrity of peer-reviewed journals, whose role is vital to the conduct of science, by providing a twelve month embargo period that protects publishers' subscription revenue. The University of California echoes the sentiments of a recent open letter of 26 Nobel laureates (four of whom are affiliated with UC, including UC San Francisco Chancellor Michael Bishop), that stated, "the time is now for Congress to enact this enlightened policy to ensure that the results of research conducted by NIH can be more readily accessed, shared and built upon to maximize the return on our collective investment in science and to further the public good." Thank you for your tireless support of the University of California and our commitment to enhancing the nation's public health through the endless pursuit of knowledge and scientific discovery. Sincerely, Wyatt R. Hume Provost and Executive Vice President Academic and Health Affairs cc: President Dynes Executive Vice President Darling Vice Provost Coleman Vice Provost Greenstein Vice Provost Justus Assistant Vice President Sudduth 1