[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 
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