The US National Institutes of Health (NIH) has published controversial new rules that will require NIH-funded researchers to deposit peer-reviewed papers in the agency's free online archive PubMed Central (PMC) within 12 months of publication - sparking a showdown with publishers including the American Chemical Society (ACS).

The agency announced the policy on 11 January - scarcely two weeks after President Bush signed the mandate into law as part of the 2008 budget.

But in a letter sent to NIH director Elias Zerhouni just hours before publication of the new policy, Madeleine Jacobs, ACS executive director and CEO, warned that it could 'result in conflicts with copyright law and intellectual property rights' if it is not carefully implemented. 'These potential conflicts could interfere with scientific peer review of journal articles and adversely impact the sustainability of scientific journals,' she added. 

The ACS now says that NIH may have acted unlawfully because the agency failed to consult publishers adequately beforehand - as required by the bill.

'I don't think that they have abided by the law,' ACS spokesperson Glenn Ruskin told Chemistry World. 'We want to set up a policy that is fair, equitable and balanced. We are trying to work out the copyright and intellectual property questions.'

But the charge has been denied by NIH, which is pressing ahead with the policy.

'We believe that publication in the NIH Guide for Grants and Contracts is sufficient,' stated Norka Ruiz Bravo, NIH's head of extramural research. The next steps are implementation, communication, and compliance monitoring, she said.

NIH's current voluntary public access policy has had a dismal compliance rate of roughly 4 percent, and Bravo insists that it must be mandatory to be successful.

Although open access publishing advocates are celebrating the NIH development, the issue is far from settled. Publishers have vowed to take their concerns to Congress and the White House, while the Association of American Publishers (AAP) is considering legal action. 

Nevertheless, the open access movement is advancing beyond the US. The European Research Council's (ERC) scientific council issued even more stringent guidelines earlier this month. The plan requires that all peer-reviewed publications from ERC-funded research projects be deposited into a repository like PMC and made freely available within six months of publication. 

Rebecca Trager, US correspondent for Research Day USA