The following remarks were made by Günter Waibel, Associate Vice Provost and Executive Director of CDL, at the public workshop “Enhancing Public Access to the Results of Research Supported by the Department of Health and Human Services,” held at the National Academies of Science, Engineering and Medicine in Washington DC, November 30 – December 1, 2023.

My name is Günter Waibel, and I am the Executive Director of the California Digital Library at the UC Office of the President. I’ll focus my remarks on the implementation of the 2022 White House OSTP guidance by agencies, publishers and institutions.

For publishing, the OSTP guidance has two tracks.

  • Track A is what we might call the mandatory green open access compliance track.
    • Compliance requires a deposit in an “agency-designated repositor[y] without any embargo or delay.”
  • Track B is what we might call the entirely optional gold open access publishing track.
    • The memo states that agencies should “allow researchers to include reasonable publication costs […] in all research budgets.”

Both of these tracks potentially require different kinds of investments from institutions, their libraries and their authors. On both tracks, there are significant opportunities for federal agencies and publishers to create a more seamless and equitable experience.

Let’s focus first on Track A, the repository deposit required for compliance.

1. My first hypothesis: this track works more smoothly if it unfolds within a clear legal framework.

The situation: Today, most US authors, including UC authors, own the copyright in their work. Publishers on the other hand have devised various methods, largely utilizing license-to-publish agreements, to attempt to divorce authors from their copyright or the rights associated with their copyright. (The presentations here provide a great overview of how publishers try to thwart author rights.) Most authors are not copyright experts and are thus confused about how to navigate this legal gauntlet successfully; and at the end of it, many of them will feel uncertain about whether they have retained the right to deposit their articles in a repository .

Recommendation: Federal agencies, including HHS, can alleviate this confusion by invoking the pre-existing federal purpose license 2 C.F.R. §200.315(b) in their public access plan. This license ensures that all federally funded authors have the prior right to deposit their articles, regardless of any conflicting contract they subsequently sign with a publisher.

2. My second hypothesis: this track works more smoothly if authors do not have to manually deposit.

The situation: Today, authors have many opportunities and mandates to make their articles openly available. For example, a UC author may have the opportunity to publish open access directly with a publisher under a library-supported open access agreement; under UC’s open access policy, they have the self-imposed mandate to deposit their article in eScholarship, UC’s open access repository; and if they are federally funded, they also need to deposit their article in an agency-designated repository. Authors understandably will ask why they should spend the time and effort to make their article openly available over and over again.

Recommendation: Federal agencies, including HHS, can alleviate this burden on authors by working in partnership with publishers and institutions to design a system that creates an automatic compliance deposit as a by-product of article publication. Leveraging pre-existing infrastructure for disseminating publication metadata via open, interoperable, and machine-readable persistent identifiers (PIDs), publishers could make authors’ accepted manuscripts as well as the metadata about these manuscripts publicly available, allowing federal agencies and institutions to harvest relevant articles on the day of publication. UC is deeply interested in pursuing any ideas for compliance that do not create an extra cost for authors or institutions. Institutions want to make things easier for our authors; agencies want compliance – there’s a clear win-win here.

In summary, the costs of a poorly thought-out legal and technical framework for repository deposits will primarily be borne by authors in terms of both rights confusion and repetitive compliance labor. As always, this creates in particular hurdles for authors at institutions that have less of a support infrastructure. Instead, agencies, institutions and publishers should make the investments to design a user friendly and scalable framework over the next two years that supports intuitive and equitable participation.

Let’s now turn our attention to Track B, the opportunity to publish open access supported by federal funds.

It bears repeating: A gold open access publication is not required by the White House guidance, and it is not sufficient for compliance. At the same time, Track B is where the policy extends a lifeline to publishers by supporting a gold OA publishing business model.

Here are the reasons why I see it that way:

  1. Track A of the policy further erodes the viability of a paywall (subscription) business model by making approximately 40% of US articles immediately available, per OSTP estimate.
  2. That puts publishers under increasing pressure to transition to business models that remunerate full open access publishing. Otherwise, they’ll get scooped by the versions of publications deposited for immediate access in repositories.
  3. Particularly for large publishers, the most logical available business model remains gold OA or APC-based publishing, which Track B of the policy explicitly supports by asking agencies to allow grantees to budget for APCs.

My hypothesis for Track B:
1. This track creates the risk of significant double payments to publishers, particularly from research intensive institutions.

The situation: When libraries pay subscriptions, and authors separately pay open access fees funded through grants, there is only one winner: the publisher’s bottom line. A quick case study: in 2019, UC paid $40M in publisher subscription contracts each year, while our authors paid an additional $10M in APCs that year. I think both libraries and agencies agree that we should not direct two additive revenue streams towards publishers. 

Recommendation: Let me say first that federal agencies should continue to emphasize the availability of grant funds for APC payments. Research intensive institutions can rely on federal funds to support a sustainable transition to open access. At UC, library negotiated publisher open access agreements have become the vehicle for combining former subscription dollars and grant funds into a single payment to the publisher. UC has 15 open access agreements that embody this principle of combined payments streams that contractually cap total publisher revenue. No more double payments. In 2021, these agreements created a cost-avoidance of $1.5M for the UC Libraries, and an additional cost-avoidance of $900,000 for UC authors compared to business-as-usual. In other words: both the libraries, and federal agencies (via authors) paid less.

These agreements are vital in particular for R1 publishing intensive institutions to make open access agreements affordable while curtailing total campus revenue to publishers. Over time, non-R1 institutions would also benefit: if reading-intensive colleges only owed a payment for their publications, costs would be lower than under subscriptions, and in many instances, dramatically so.


In summary, my recommendations to federal agencies are:

  1. Please invoke the federal purpose license in your public access plans to create legal clarity for authors.
  2. Please work with publishers and institutions to develop a scalable path towards automating repository deposit and compliance. PIDs that are openly available, that meet best practices agreed upon by the research community, and that are designed for global adoption and interoperability offer a promising approach.
  3. Please continue to ensure that grantees understand that grant funds are eligible for open access payments.

My recommendation in particular to large research institutions is:

  1. You can stop double-payments to publishers out of your library funds and federal agency grant funds by negotiating open access agreements.

Thank you.