Peter Suber wrote in OA News:
PS: ” I agree that [a Deposit Mandate [DM] plus the “email eprint request” Button] would be a good fallback in the (unlikely) event that the Conyers bill passes. But I can’t agree that it would ‘hasten universal OA more effectively than the current NIH mandate'”
There are three issues here, not one!
(2) Adding DM to the current NIH mandate even if it is not defeated.
(3) And the question of what would have been the effect of adopting DM in the first place.
On all three, I think the answer is very definitely that DM (whether added or substituted) would hasten universal OA more effectively. (And I actually think Peter would agree about all three of these; the seeming disagreement may be just a verbal one.)
Note that what I said was that an NIH Deposit Mandate (Immediate Deposit, with optional Closed Access plus the “Almost-OA” Button) would hasten universal OA far more effectively than the current NIH (Delayed OA-Deposit) Mandate.
I said universal OA because I was not referring merely to OA for NIH-funded research, nor to the effect of the NIH mandate only on NIH-funded research:
It is far easier for other funders and institutions to reach agreement on adopting Deposit Mandates of their own (Immediate Deposit of all articles, with the option of Closed Access and the “email eprint request” Button during any publisher embargo) because that completely removes copyright concerns, publishers, and the publisher’s lobby from the decision loop. For embargoed articles, DM is merely an internal record-keeping mandate, yet with the Button it can also provide almost-OA — and will almost certainly lead to full OA once the practice becomes universal.
So the first reason an NIH DM would be (and would have been) more effective is that, being free of legal obstacles, it is universally adoptable. Many funders and even institutions have instead copied, or tried to copy, the NIH Embargoed OA Mandate (with deposit mandated only after the publisher OA embargo has elapsed).
These legally encumbered mandates have either failed to be adopted elsewhere altogether, because of unresolved legal concerns (I know of many that have been under debate for years), or they have been adopted, cloning the NIH model, with the loss of the opportunity for Almost-OA during the embargoes (and an uncertainty about whether and when deposit actually takes place).
That represents a (i) a loss of any mandate at all, among the would-be mandates that failed to be adopted because of the avoidable copyright concerns, (ii) a loss of a good deal of Almost-OA during the embargo periods for the adopted mandates, and (iii) continuing delay in reaching universal OA, for which universal deposit is a necessary precondition!
So, yes, the NIH mandate would have been more effective, both for NIH OA and for universal OA, if it had been a DM: It would have generated immediate Almost-OA for NIH and more DMs worldwide. DM can still be added to the NIH mandate now, whether or not the Conyers Bill passes. If Conyers fails, that will make NIH an Immediate DM plus Embargoed OA Mandate — which is much better than just an Embargoed OA Mandate. If Conyers passes, then it will make NIH just an Immediate DM, which is still better than no mandate for NIH, still provides Almost-OA during any embargo, and is far more conducive to consensus for universal adoption.
PS: ” The NIH mandate provides (or will soon provide) OA to 100% of NIH-funded research, not OA to 63% and almost-OA to 37%”
If Conyers passes, then (as Peter agrees), DM is the right Plan B. But even if Conyers fails, why not add DM to the current NIH embargoed OA mandate, and have at least embargoed OA for 100% of NIH-funded research plus immediate almost-OA during the embargo (and a better mandate model for universal adoption)?
PS: ” [Nor can I agree that] “there is no way to stop [an NIH immediate DM plus the Button] legally”. …if Congress wanted to, it could block closed-access deposits too.”
Of course Congress can vote into law anything that the Supreme Court does not rule unconstitutional and the President does not veto. But it does seem a bit far-fetched to imagine that Congress would make a law to the effect that NIH is forbidden to require the deposit of a copy of the publications it funds, for internal record-keeping purposes. (And such a bizarre law would be sui generis, nothing to do with copyright.)
Nor does it seem likely that Congress would make a law that US researchers could no longer send reprints of their research to researchers requesting them, as researchers worldwide have been doing for a half century. (And this too would be an ad hoc law, though, at a stretch, it could be portrayed as a curb on Fair Use.)
PS: “However, I would like to see the NIH add the email request button even if the Conyers bill goes down in flames. Then the policy would provide embargoed OA to 100% of NIH-funded research, and almost-OA during the embargo period.“
I think we are in complete agreement! Substitute DM + Button for the current NIH Mandate if Conyers fails, and add DM + Button even if it succeeds. (But that doesn’t just mean the Button: It means adding the requirement to deposit immediately upon acceptance for publication.)
The only thing missing from this agreement is the one additional (but crucial) further facilitator of universal adoption of DMs: NIH should specify that its preferred mode of deposit is to deposit the postprint in the author’s own Institutional Repository (if there is one) and then to port it automatically to NIH from there, via the SWORD protocol: