Public Access Policies from Federal Agencies Are Released: Now What?

First posted on the ORIGINal Thoughts Blog

By Angela Cochran
Vice President of Publishing
American Society of Clinical Oncology
LinkedIn: linkedin.com/in/angela-cochran-126a4411

Take Home Points:

In August 2022, the White House Office of Science and Technology Policy (OSTP) released a memo directing all federal agencies to update or create public access policies for peer-reviewed papers that report on research funded by Federal government agencies. The memo is now referred to as the “Nelson Memo” for Dr. Alondra Nelson, the acting director of OSTP who issued it.

Note: The Trump Administration has said that any policies that have not gone into effect yet will be reviewed before implementation. That would apply to these funder policies, as the implementation date is at the end of this year. The press release announcing the policy leads to a 404 error on the White House website. It is possible that the memo will be rolled back, and new guidance (or no guidance) will be issued to the agencies.

The memo called for some sweeping changes compared to the previous OSTP directive, the Holdren Memo, issued in 2013.

The 2013 Holdren Memo called for large research agencies (those with more than $100 million in research and development spending) to enact a public access policy that makes research results published in peer-reviewed venues publicly accessible within 12 months of publication. This 12-month period is what we refer to as the embargo.

The Holdren Memo was really just extending to the rest of the large funding agencies what Congress had already mandated for the National Institutes of Health (NIH) previously. The NIH was already required by law to have a policy requiring that peer-reviewed manuscripts be deposited in PubMed Central (PMC)—an extension of the PubMed repository run by the National Library of Medicine—and be publicly accessible no later than 12 months post-publication.

The 2022 Nelson Memo extended public access policies to all funding agencies but most notably eliminated the 12-month embargo. The memo required that agency policies be updated and published no later than December 31, 2024, and implemented no later than December 31, 2025.

Over the last 28 months, agencies have held webinars, posted plans for public comment, issued requests for information (RFIs), and participated in workshops or meetings. Publishers, researchers, librarians, and the public have been able to respond to agency plans and share concerns.

From the publishing perspective, concerns have coalesced mostly around eliminating the 12-month embargo and language that gave the government broad rights to reuse the content in unspecified ways.

Zero Embargo

The elimination of the embargo is a “controversial” topic in that different kinds of publishers/journals have different issues to deal with. For example, if you are a publisher with journals that are not conducive to an Article Processing Charge (APC)-based open access model, zero embargo is problematic. This is exacerbated depending on how many published papers that report on federally funded research are published yearly. Some clinical journals, for example, invest in enhancements of journal content that raise the cost per article to a level that is typically higher than industry norms for an APC. These expenses for the journal are often offset by advertising or licensing revenue.

Likewise, highly selective journals do not publish enough content to maintain revenue in an APC model. Maintaining a sustainable revenue would likely require very high APCs.

If you are a publisher committed to flipping your entire portfolio to open access, zero embargo is a gift; it will likely accelerate the flip. Why perpetuate a subscription model for content freely available in a government repository such as PubMed Central or DOE-PAGES when you can charge an APC upfront?

Re-use Rights

Some of the draft policies include broad re-use guidelines that effectively give the government agencies the right to use, change, and create derivative works of peer-reviewed journal content. They also maintained that the government agency can transfer those rights to any third party they choose.

Many publishers objected to this broad language because it essentially applies a CC-BY license without attribution to the author or journal of record. Further, concerns about research integrity and manipulation of published science were raised. By providing the government with a license to alter or create derivative works, it gives the government permission to change the content or append the content. And lastly, licensing of content to third parties is a revenue generating business line for publishers that would become moot under these policies.

Now that the December 31, 2024, publication deadline has passed, we can review the changes to public access policies for some of the largest research funding agencies: the National Institutes of Health (NIH), Department of Energy (DOE), National Aeronautics and Space Administration (NASA), and the National Science Foundation (NSF).

National Institutes of Health

The NIH has had a Congressionally mandated public access policy since 2008. The PubMed Central manuscript repository is well established. The National Library of Medicine implemented a batch deposit process over 15 years ago to enable publishers to deposit accepted manuscripts with NIH funding acknowledged by authors. Many publishers of medical research provide this author service today. Here is what the new policy stipulates:

• Immediate Access: Peer-reviewed articles that report on NIH-funded research must be made available in PMC immediately upon publication, eliminating the previous 12-month embargo period. Either the accepted manuscript or the final published paper as it appears in the journal (if the publisher’s license allows) can be deposited.
• Author Deposit: Authors and/or their institutions are responsible for depositing their accepted manuscripts in PMC. Publishers may still offer deposit as an author service, but publishers and journals are not mandated to deposit NIH-funded articles. Some publishers have already applied conditions, such as only depositing manuscripts that will publish open access.  Authors or institutions may be restricted from receiving any more funding if they do not comply with the deposit requirements.
• Costs: The NIH policy allows grantees to include “reasonable” publication fees in their grant request—this would include APCs for publication. However, the policy explicitly prohibits fees to publishers for depositing accepted manuscripts into PMC on behalf of the author. They also won’t pay for fees that don’t result in a peer-reviewed accepted manuscript. This would include submission fees or so-called development fees for rejected papers.
• Retention of Rights: Authors are encouraged to retain sufficient rights to comply with the policy, including the right to deposit the accepted manuscript in PMC. The final version of the policy withdrew a requirement to allow the agency to create derivative works.
• Implementation Date: This policy applies to papers accepted for publication on or after December 31, 2025.

Department of Energy

DOE is also seasoned in hosting robust repositories of funded research. The DOE Public Access Gateway for Energy and Science (DOE PAGES) repository has hosted peer-reviewed journal articles with an embargo as well as reports, white papers, etc. Here are the recent changes:

• Immediate Access: The updated plan removes embargoes and mandates immediate public access to peer-reviewed journal-accepted manuscripts or final publications, if allowed.
• Author Deposit: Funded researchers or their institution must deposit papers to the DOE PAGES database.
• Implementation Date: This policy applies to papers accepted for publication on or after December 31, 2025.

National Aeronautics and Space Administration

With the Holdren Memo of 2013, NASA developed the NASA PubSpace Database, which is a dedicated repository built off PubMed Central’s platform. The recent changes include:

• Immediate Access: Accepted manuscripts or published papers must be deposited in the PubSpace Database with public access granted immediately upon publication. Data that support peer-reviewed publications shall be made available in a public archive at the time of publication. Software used to generate research findings/results should be included as part of public access at the time of publication.
• Costs: Researchers may include “reasonable” costs for making research activities publicly available in their grant requests. The policy states that review committees will advise researchers on what is reasonable.
• Implementation Date: This policy applies to papers accepted for publication on or after December 31, 2025.

National Science Foundation

The NSF has its own repository called NSF-PAR. The recent updates include:

• Immediate Access: The updated policy will require immediate public access to either the accepted manuscript or final publication, upon publication in a journal. The NSF policy also requires that “juried” conference proceedings papers be included in the database with zero embargo.
• Non-Exclusive License: NSF-PAR receives a non-exclusive license, allowing authors to retain copyright while granting NSF the right to distribute the work under a government purpose license. Interestingly, the NSF policy notes that there should be a consensus among federal agencies to require a Creative Commons Attribution Only (CC BY) license, and it “stands ready” to discuss that further.
• Costs: The NSF policy does allow for “reasonable” data and publication costs to be included in the grant request.
• Implementation Date: The policy will apply to new awards resulting from proposals submitted or due on or after the January 2025 effective date.

Potential Consequences, Intended or Not

Removing the 12-month embargo is a subscription-model killer. While many complain about the costs of accessing subscription content, APC-funded open-access is the most viable replacement and instead restricts access to publishing. Still, the easiest way to deal with policies such as these is to just flip the industry to an APC-funded model. For some disciplines or some journals, funding for research may be partially reliant on industry or non-US governments.  And, having to pay an APC for most papers that are currently published without one is sure to cost taxpayers more money as well.

Moving to APC-funded publishing introduces a whole host of new and well-documented concerns including:

• Equity issues around who can afford to pay APCs
• Well-funded institutions subsidizing access for the rest of the world (the “free-rider” problem)
• Publishers focusing on the volume of papers published instead of the quality of papers published is a depressing race to the bottom
• So-called transformative agreements are not extended to smaller or society publishers and are not desirable for smaller institutions that don’t publish a lot.

Zero embargo policies also discount the work journals and their editors perform between author submission and acceptance. The federal government has acknowledged that the work done to maintain research integrity and unconflicted peer-review is important (otherwise they would have mandated preprints), but they don’t value it enough to allow for a diversity of business models.

Challenges to the Policies

Language prohibiting funding for implementation of the Nelson Memo and language prohibiting re-use rights was inserted in some budget bills. As we have only seen continuing resolutions and not a full budget, it remains to be seen whether the guts of the Nelson Memo carries forth.

As new leadership accompanies the change in administration, new opinions on the dissemination of scholarly research will be taken into account. Whether these opinions amend, replace, or ignore the Nelson memo is yet to be communicated.