Author Archives: Larry E Hibbler

New Federal Agency Public Access Policies

With the end of 2024, some federal agencies released updates to policy in guidance providing more details on their implementation of the Office of Science and Technology Policy Nelson Memo that requires articles based on federal grants to be made available to the public without cost or embargo. The Department of Energy has created a useful tracker for many agency plans.

National Institutes of Health

The National Institutes of Health released a new Public Access Policy in December. The new policy requires researchers funded by NIH grants to make the accepted manuscript of a published article available immediately upon publication, eliminating the currently-allowed 12 month embargo. The new policy takes effect for any article submissions accepted after December 31, 2025. This policy was developed in response to the Office of Science and Technology Policy “Nelson” Memo from 2022, which directed all research funding agencies to make funded research immediately available. 

One of the biggest issues around the new policy is the question of cost. NIH asserts that complying with the policy costs researchers nothing, as researchers only have to submit their manuscripts to the government, which is free. Also, no specific licensing requirement is needed – the NIH emphasizes that this is public access, not open access. Compliance may technically be free, but researchers could still face costs. Some publishers do not currently allow articles to be made available without the payment of an article processing charge. Some of these charges are allowable to be covered by grants funds. The NIH will not cover charges from publishers solely to comply with the new policy. Journals must treat all articles the same. The NIH also did not put a specific dollar amount as to what a ‘reasonable’ cost was.

This policy change has been in the works for a while, but was notably announced weeks before a new administration starts. This was released as a “Policy” and not as a regulation; however, it could still be eligible to be rescinded by Congress via the Congressional Review Act, if the Government Accountability Office deems it qualifies as a rule. There is also a question of what happens to the OSTP memo when the new administration takes office.

National Science Foundation

The National Science Foundation also put its changes in guidance form, including the new language in its Proposal and Award Policies and Procedures Guide. The guide reiterates the point that submitting to the NSF system is free, but that grant recipients can use awards to pay publishers to allow making the Version of Record available, a long way of saying that awards can be used for Article Processing Charges.

The Librarian of Congress Rules

Carla Hayden has served as the Librarian of Congress since 2016 – picture taken from the Library of Congress official website.

Every three years, the Librarian of Congress, with the recommendation of the Register of Copyrights, releases a regulation detailing exemptions to the Digital Millennium Copyright Act (DMCA) of 1998. The latest exemptions were released at the end of October.

The DMCA is a complicated law. It bars people from “circumventing a technological measure that effectively controls access” to a copyrighted work. 17 USC 1201(a)(1)(A). This includes decrypting an encrypted work, but it includes things one does not necessarily think of as encrypted, like a DVD of a movie. This is also independent of the right to use the work; even if something would be fine under fair use, violating the DMCA is a separate problem. The Librarian of Congress issues exceptions where people are allowed to circumvent technical measures. These exemptions are reviewed, and new ones considered, every three years.

This year, we saw almost all of the prior exemptions renewed. For libraries, this included important and often-used exemptions for using short portions of motion pictures for educational purposes, criticism, and comment, and for motion pictures for accessibility and preservation purposes.

The Librarian added to the exemption for text and data mining, allowing researchers at non-profit colleges and universities to access corpora, either of motion pictures or literary works, hosted at other institutions, if certain security thresholds are met. These researchers do not even have to be collaborating with researchers at the host university. I think that we will see institutions hosting corpora for the good of researchers everywhere, although it might take grant funding to bring that to fruition.

Two new exemptions were denied. The Librarian did not expand an exemption for video games, which would allow for more individuals to use copies at a time. She also rejected an exemption for AI models for trustworthiness research. Also of note, there was an exemption added for the software that runs retail ice cream machines, so they will be more repairable.

Spring ETD Workshops

Completing a dissertation is a significant milestone, and ensuring its proper submission is equally important. The Libraries’ eTD@BC workshops are designed to guide graduate students through the thesis or dissertation submission process. By planning ahead, you can save valuable time when you need it most – at the end. This spring, we’re offering three sessions, one in-person and two virtual, that cover the same essential information.

Dates:

  • Wednesday, February 12, noon – 12:45 pm, on Zoom.
  • Tuesday, February 18, 6:30 – 7:15 pm, on Zoom.
  • Thursday, February 20, noon – 12:45 pm, O’Neill Library 307.

To register, go to https://libcal.bc.edu/calendar/workshops. Upon registration for an online workshop, you will receive a confirmation email with the Zoom link.

Topics to be covered in this workshop include:

  • The submission website, including a walk-through of the submission process
  • Important decisions and issues, such as eScholarship@BC, embargoes, copyright, etc.
  • How to ensure that a published eTD can be discovered and accessed by others
  • Where to get additional help

Graduate students can contact etd-support@bc.edu with any questions about the workshops.

International Open Access Week

International Open Access Week returns this year, from October 21st – October 27th. The theme is once again “Community over Commercialization.” Open Access as a mode of publishing is more successful than ever. According to the Association of Scientific, Technical and Medical Publishers, in the last ten years, the share of publications available only to subscribers has fallen from 70% to 52%, meaning many more people are able to read scholarship at no cost.

But within that success is also a story of commercialization. Gold OA, where the author or research funder pays the Article Processing Charge, has more than tripled as a percentage of publishing, while Green OA, which is a version of open publishing that does not cost extra, is now half of what it was. With APCs averaging nearly $1,400, and large publishers like Elsevier averaging $2,100 for Gold OA, and $3,440 for publishing Open Access in a hybrid journal, Open Access is coming at quite a cost.

The Budapest Open Access Initiative Declaration, one of the guiding documents of the Open Access movement, was issued in 2002, at a time when print still dominated scholarly publishing. One of its big ideas is that the move to the Internet for publishing would make it much cheaper. This has not proven to be the case. As we enter this Open Access Week, it is a time to reflect on how we can better balance the need to compensate all parts of the scholarly communications ecosystem for the work they do, while keeping the dissemination of knowledge and the betterment of society as the goal we hope to achieve.

This year at the Boston College Libraries, we have put together a display on the third floor lobby of O’Neill and in the Theology and Ministry Library, highlighting works from our collection having to do with access to scholarly materials and the push for open models. Boston College Libraries also publish a number of undergraduate journals, and will be holding an editors forum October 24th at 3pm where editors can learn how to use tools like OJS and Tableau to help kickstart a new publication or highlight journal statistics. To find out more about the movement toward fuller open access, check out Peter Suber’s book on the subject, Open Access, which is available in print – and also fully free online, (an open access version!)

Major Publishers Sued for Antitrust Violations

Professor Lucina Uddin, with Justice Catalyst and the law firm Lieff Cabraser, has filed an antitrust case against six of the largest for-profit publishers: Elsevier; Wolters Kluwer; Wiley; Sage; Taylor & Francis; and Springer Nature, as well as the International Association of Scientific, Technical and Medical Publishers, commonly known as STM. Interestingly, this is a class action lawsuit from a private plaintiff, not a government action.

The complaint is a broadside against the current state of the scholarly publishing industry. For its antitrust claims, the plaintiffs point to three major areas: uncompensated peer review; the requirement that authors submit exclusively to one journal; and the requirement that, upon article acceptance, authors sign away their rights to publishers that prevent the authors from sharing their research. The plaintiffs point to language found in STM’s International Ethical Principles for Scholarly Publication, which all publishers in the case agree to, in support of their case.

It is important to keep in mind that a complaint does not need to go that far in detailing the legal arguments that go into a case. The plaintiff says the defendant did some things, asserts those actions were unlawful, states the source of the unlawfulness, and asks for some relief. The first of those take up the majority of the brief. Before the court can really get into the lawfulness question, it will have to resolve the issue of this being a class action, and the definition of the class. The publishers will likely assert that individual authors cannot be joined as a group, and need to be treated individually. They might have a point, in that some people may have only interacted with the system as peer reviewers, and some people may have only been submitting authors. 

Allegations

The first allegation is about unpaid peer review labor. This allegation should give the defendants the most pause. Why aren’t peer reviewers compensated financially? Whatever that reason is, is there a better way to deal with that issue rather than not paying them? By many accounts, we are reaching a peer review crisis in terms of finding enough reviewers. The biggest problem the plaintiffs face here is that their allegation is pretty weak in terms of pointing to the actual language in STM documents that say reviewers should not be paid. There is acknowledgement that it is volunteer work, but none of the ethics requirements say not to pay. 

The second is the requirement that authors only submit to one journal at a time. This certainly predates STM, but it is mentioned in the STM ethics. It is an interesting idea to consider what academic publishing would look like where journals compete for articles at the submission stage. Most law publishing is already this way. Allowing multiple submissions has not led to any monetary compensation for authors, but there are ways authors use the system to maximize prestige, which is one of the main benefits authors get from publishing. It is also arguably quite inefficient, with potentially hundreds of journals all spending time to review a submitted manuscript with no pay-off. 

The final claim is against the practice in author agreements that prohibit sharing of the manuscript. I’m not sure that this is completely factually correct, as it seems to mix articles under submission and articles that are published, but the claim will need to be fleshed out in light of policies on things like preprints. The complaint is also against publishers requiring authors to sign publishing agreements where the authors transfer their copyright.

Analysis

Overall, I do not think this lawsuit will “fix” scholarly publishing. It does not effectively address the prestige economy that drives authors to certain behaviors in the first place; nor would the industry become less consolidated. However, even if it turns out that the business of scholarly publishing is not the way it is due to unlawful market collusion, it is good to question why the industry is shaped like it is.

I am not sure how the large Open Access publishers, MDPI and Frontiers, did not get listed as parties in the lawsuit. Given the suit alleges the defendants own a little more than half of all academic journals, they must be more concerned with titles than articles published. In addition, totally OA publishers likely could not be included in the third alleged unlawful practice, as authors are allowed to share their work.

I think the case will eventually be whittled down to the peer review compensation issue, where it will be easiest to define a particular class of people affected. At that point, a settlement that includes changing the language of the ethics guidance of STM, plus a monetary payment to reviewers (where the lawyers received a nice percentage of the total) would probably be in everyone’s best interest.