Like many of us who work in the general area of scholarly communication, I was very interested to see the August 25 update to the 2013 White House Office of Science & Technology Policy (OSTP) Memorandum on Increasing Access to the Results of Federally Funded Research (a.k.a. the Holdren Memo). Issued by Dr. Alondra Nelson, currently the acting director of the OSTP, the new memo (which I’ll call the Nelson Memo for convenience) advances several significant and substantive changes to the terms of the Holdren Memo – while, at the same time, putting those changes forward with less directive language.
All Agencies, not Just Those Making $100m+ in Grants
One of the most significant changes in guidance is the fact that whereas the directives in the Holdren Memo applied only to agencies that make more than $100 million in research grants annually, the Nelson Memo is directed at all federal grantmaking agencies. Those making more than $100 million in grants each year are asked to submit to OSTP their plans for new policy implementation within 180 days, while those making $100 million or less in annual grants are given 360 days. These plans should be completed and published by the end of 2024, and fully implemented by the end of 2025.
No More Embargoes Allowed
Another change that has really caught the scholarly communication world’s attention is the elimination of embargoes from the OSTP guidance. The Holdren Memo enjoined “each agency” to “use a twelve-month post-publication embargo period as a guideline for making research papers publicly available” (while, at the same time, giving each agency leeway to “tailor its plan as necessary to address the objectives articulated in this memorandum, as well as the challenges and public interests that are unique to each field and mission combination”). It also required agencies to establish “a mechanism for stakeholders to petition for changing the embargo period for a specific field by presenting evidence demonstrating that the plan would be inconsistent with the objectives articulated in this memorandum.”
Neither embargoes – of any length – nor the idea of “leeway to tailor” plans in light of “challenges and public interests that are unique to each field and mission combination,” nor a possibility of petitioning for exceptions is contemplated in the Nelson Memo. Instead, “federal agencies should update or develop new public access plans” to ensure that “all peer-reviewed scholarly publications authored or co-authored by individuals or institutions resulting from federally funded research are made freely available and publicly accessible by default in agency-designated repositories without any embargo or delay after publication.” Full stop.
No More Talk about “Public-Private Collaboration”
The Holdren Memo specified that “each agency plan shall… encourage public-private collaboration to maximize the potential for interoperability between public and private platforms and creative reuse to enhance value to all stakeholders, avoid unnecessary duplication of existing mechanisms, maximize the impact of the Federal research investment, and otherwise assist with the Agency plan.” Furthermore, it required that each agency’s plan include a strategy for leveraging existing archives, where appropriate, and fostering public-private partnerships with scientific journals relevant to the agency’s research.” No such language exists in the Nelson Memo (though it is mentioned that a Subcommittee on Open Science will “coordinate engagement with” various stakeholders, including publishers and libraries, “on federal agency public access efforts”; what exactly this means is quite unclear).
What about Research Data?
The Holdren Memo discussed, at length, the importance of providing public access not only to research publications, but also to underlying research data sets. Section 4 of that memo laid out detailed requirements regarding the management, archiving, distribution, and discoverability of data sets produced in the course of federally funded research, and (again) required each plan to “encourage cooperation with the private sector” in doing so. The Nelson Memo, by contrast, makes no mention of the private sector beyond preserving the Holdren Memo’s injunction to ensure that data access plans protect “business confidential information.” More importantly, whereas the Holdren Memo explicitly allowed for limitations on public data provision based on “feasibility,” the Nelson Memo does not acknowledge any reasonable limitations on data provision based on practical considerations, nor the possibility that there may be “challenges and public interests that are unique to each field and mission combination.” And it goes further, asking funding agencies to “develop approaches and timelines for sharing other federally funded research data that are not associated with peer-reviewed scholarly publication” (emphasis mine). This significantly expands the scope of the data-access requirement, while at the same time eliminating the one-year grace period allowed under the Holdren Memo — and, of course, applying to all grants made by the federal government, not just those from the biggest grantmakers. This will create a significant burden for publishers – something the Holdren Memo took some care to avoid, but which seems to be considered of no consequence in the Nelson Memo.
Still “Public Access, Not “Open Access”
One important element of the Holdren Memo that has not changed in the Nelson Memo is the use of the term “public access” rather than “open access.” While there is still no universally accepted definition of “open access,” the distinction between the two terms is generally understood to be the difference between “free to read and download” (public access) and “free to read, download, and reuse without functional restriction” (open access).
Subtle (But Possibly Significant) Differences in Language
One of the intriguing differences between the Holdren and Nelson Memos is that of language. From the beginning, the Holdren Memo is explicitly directive: “(OSTP) hereby directs each federal agency…” it begins following an introductory section, and the Memo proceeds to lay out its specific directives using verbs like “shall” (“Each agency plan shall…”, “each agency shall… provide a mechanism…”, etc.) and “must” (“Each agency plan must be consistent with the objectives set out in this memorandum,” “Each agency plan… must contain the following elements,” etc. – all preceding emphases mine). Interestingly, no such language exists in the Nelson Memo. From its introductory paragraph, it is framed in language that indicates its provisions are optional rather than mandatory: “In accordance with this memorandum,” the document begins, “OSTP recommends that federal agencies, to the extent consistent with applicable law…” (emphasis mine). Subsequent language in the Nelson Memo continues to give the impression that its provisions are suggestions rather than prescriptions: “Federal agencies should develop new, or update existing public access plans as soon as possible…”; “Plans should describe…”; “Scientific data… should be made freely available and publicly accessible by default at the time of publication…”; “Federal agencies should report to OSTP, when requested, on the status of their public access plans…”; etc. (emphases mine). The words “must” and “shall” appear only in reference to abstract overarching principles (“A federal public access policy… must allow for broad and expeditious sharing…”; “Nothing in this memorandum shall be construed to impair or otherwise affect…”; etc.). At no point are the terms in the Nelson Memo referred to as “requirements,” whereas those of the Holdren Memo are explicitly characterized in that way.
Public discussion of the Nelson Memo has already begun on the listservs, and various stakeholder groups including the Association of Research Libraries, SPARC, and the Association of American Publishers have issued public responses. But many questions remain to be answered. Among them:
- Where the Holdren Memo laid out requirements, the Nelson Memo seems only to advance suggestions. Is this difference in language meaningful in practice?
- What is the nature of the OSTP’s statutory authority over federal agencies? If an agency opts not to follow the terms laid out in the Nelson Memo, will there be any consequences? If so, what would they be?
- Does the Nelson Memo wholly supersede the Holdren Memo, or are terms of the latter not directly altered by those of the Nelson Memo – such as, for example, the requirement that agencies incorporate in their plans a “strategy… for fostering public-private partnerships with scientific journals relevant to the agency’s research” – still in force?
Karin Wulf and I have invited Dr. Nelson to be interviewed for a future Scholarly Kitchen posting, and if she accepts we’ll be sure to ask her questions such as these. We await her reply.