September 2, 2014

Librarians, Open Access Advocates ‘Vehemently Oppose’ Research Works Act

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A bill introduced December 16 in the House of Representatives has exacerbated tensions between open access advocates and the scholarly publishing industry over the dissemination of  publicly funded scientific and medical research.

The Research Works Act (H.R.3699), co-sponsored by Darrell Issa (R-CA) and Carolyn Maloney (D-NY), has only just been referred to the House Committee on Oversight and Government Reform, a zone from which few bills emerge unmodified (if they emerge at all), but the measure’s import has had, nevertheless, the effect of a 3 a.m. tocsin on  librarians and other open access champions who wish to raze paywalls that enclose taxpayer-funded, peer-reviewed research.

The American Library Association said today that it “vehemently opposes the bill.”

“Essentially, the bill seeks to prohibit federal agencies from conditioning their grants to require that articles reporting on publicly funded research be made accessible to the public online,” wrote Heather Joseph, the executive director of the Scholarly Publishing and Academic Resources Coalition (SPARC), which is a creature of the Association of Research Libraries.

“If this legislation goes through it would be a major blow to open access to scholarly research and publishing,” wrote Maura Smale on the Association of College and Research Libraries blog.

The proposed bill, if it were to pass, would roll back the National Institute of Health’s Public Access Policy, which was introduced in 2008 and which makes NIH-funded research publicly available within 12 months via PubMed Central (many scholars object even to this 12-month delay before posting on this free online repository).

H.R. 3699 would not permit the dissemination of such work without the permission of the author and the publisher. Although the measure refers to “private-sector research work,” it defines that work as “research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing.”

“The [NIH] policy has been quite unpopular with a powerful publishing cartels that are hellbent on denying US taxpayers access to and benefits from research they paid to produce,” wrote Michael Eisen, a co-founder of the Public Library of Science and an evolutionary biologist at UC Berkeley. Eisen noted that senior executives of the Dutch publisher Elsevier made 31 contributions to members of the House in 2011, of which 12 went to Representative Maloney

Peter Suber, a prominent advocate for open access to research, has been maintaining a Google+ thread on the legislation. He wrote there:

 Under the NIH policy, authors give permission for OA when they are still the copyright holders. Even when they later transfer some rights to publishers, they retain the right to authorize OA. Hence, OA through NIH is authorized by the copyright holder, in this case by the author. But RWA Section 2.1 requires publisher consent for that OA. It requires the consent of an additional party, when the relevant rightsholder has already consented. A consent which suffices under current copyright law will no longer suffice under RWA. Either that will violate US copyright law or amend it pro tanto.

The Association of American Publishers (AAP) has backed the measure, saying it “will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding.”

AAP’s support for the measure has led to calls for scholarly societies and university presses to disassociate themselves from the organization.

“These societies will certainly have among their vision and mission statements something about advancing the common good, promoting the scholarly work of their membership and scholarship in their fields as a whole,” wrote John Dupuis, the head of the Steacie Science & Engineering Library, York University, Toronto, ON, on his blog. “To my mind, The Research Works Act is directly opposed to those goals.”

Tom Reller, the vice president and head of global corporate relations at Elsevier, expressed support for the measure and commented twice on Eisen’s blog:

…Elsevier and other commercial and non-profit publishers invest hundreds of millions of dollars each year in managing the publication of journal articles. Government mandates that require private-sector information products to be made freely available undermine the industry’s ability to recoup these investments … There are plenty of ways that the public can have free access to the products of government-funded research, such as via the author’s research report, data sets or the submitted preprint. But the government shouldn’t be able to mandate the free distribution of an article after journals have invested in them to add value.

Similarly, Rep. Issa told The Atlantic magazine that “The bill has been introduced to ensure that the intellectual property rights of commercial and non-profit journal publishers are not violated by government regulators disseminating their privately owned articles for free.”

The NIH invests over $31.2 billion annually in medical research. More than 80 percent  of the NIH’s funding is awarded through almost 50,000 competitive grants to more than 325,000 researchers at over 3,000 universities, medical schools, and other research institutions.

Kevin Smith, the scholarly communications officer at Duke University, took exception on his blog to the assertions made by the publishing industry:

I am stunned by the audacity of the claim that research articles are ‘produced’ by private sector publishers!  I think the producers of these works are sitting at desks and labs scattered around my campus, and thousands of other college and university campuses.  They are not paid by publishers either to do the research or to write their articles.

A previous manifestation of the proposed bill, the “Fair Copyright in Research Works Act,” (H.R. 6845 in the 110th Congress) went nowhere.

Coincidentally, the White House Office of Science and Technology Policy has extended the deadline until Thursday, January 12, for public input on a Request for Information (RFI) whose purpose is to ensure broad public access to the result of federally funded scientific research. The RFI will inform the deliberations of the National Science and Technology Council’s Task Force on Public Access to Scholarly Publications.

Alan Garber, the provost of Harvard University, has sent a highly detailed response to the White House that addresses many of the issues raised by this proposed legislation. He notes that publishers can simply refuse to publish NIH-funded authors if the costs exceed the benefits. He also writes:

In the absence of the regulation of publishers, however, a federal policy of publisher-hosted public access would inevitably fail to achieve its own objectives.  Publishers may assert that they will provide public access.  However, their willingness and ability to provide public access would always be contingent and beyond the proper reach of federal power.  Because we can achieve assured public access by revising federal funding contracts, or regulating federal grantees, there is no need to depend on uncertain (late, temporary, selective, and unenforceable) public access from publishers.

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Michael Kelley About Michael Kelley

Michael Kelley is the former Editor-in-Chief, Library Journal.

Comments

  1. Leo Waaijers says:

    Why do we need to have this stupid fight over and over again when we have simple alternatives? Cancel the Elsevier subscriptions and use the huge sums of money that are thus freed to publish the articles in the journals of PLoS, BioMedCentral, Hindawi and many other Open Access publishers. Or even Springer Open, although their position may be dubious as they are member of AAP as well. Why is academia so reluctant?

  2. Helena Asamoah-Hassan says:

    This is rather unfortunate! Developing countries are now going to go some steps backwards again if this Bill is passed, when we have just began breathing sighs of relief for gaining access to research results from the North. What a shame!!!

  3. Please help us organize the fight to retain public access by joining and sharing our Facebook community: http://www.facebook.com/ResearchWorksAct

    We are students and postdocs in Carolyn Maloney’s district, which encompasses Weill-Cornell, Memorial Sloan-Ketting Cancer Center, Rockefeller University, NYU Medical Center, Mt. Sinai Medical School, and Hunter College. Help us spread the word to pressure her to kill the bill.

  4. See:
    “Research Works Act H.R.3699:
    The Private Publishing Tail Trying To Wag The Public Research Dog, Yet Again”

    http://openaccess.eprints.org/index.php?/archives/867-guid.html

    EXCERPT:

    The US Research Works Act (H.R.3699): “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that — (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.”

    Translation and Comments:

    “If public tax money is used to fund research, that research becomes “private research” once a publisher “adds value” to it by managing the peer review.”

    [Comment: Researchers do the peer review for the publisher for free, just as researchers give their papers to the publisher for free, together with the exclusive right to sell subscriptions to it, on-paper and online, seeking and receiving no fee or royalty in return].

    “Since that public research has thereby been transformed into “private research,” and the publisher’s property, the government that funded it with public tax money should not be allowed to require the funded author to make it accessible for free online for those users who cannot afford subscription access.”

    [Comment: The author's sole purpose in doing and publishing the research, without seeking any fee or royalties, is so that all potential users can access, use and build upon it, in further research and applications, to the benefit of the public that funded it; this is also the sole purpose for which public tax money is used to fund research.]”

    H.R. 3699 misunderstands the secondary, service role that peer-reviewed research journal publishing plays in US research and development and its (public) funding.

    It is a huge miscalculation to weigh the potential gains or losses from providing or not providing open access to publicly funded research in terms of gains or losses to the publishing industry: Lost or delayed research progress mean losses to the growth and productivity of both basic research and the vast R&D industry in all fields, and hence losses to the US economy as a whole.

    What needs to be done about public access to peer-reviewed scholarly publications resulting from federally funded research?

    The minimum policy is for all US federal funders to mandate (require), as a condition for receiving public funding for research, that: (i) the fundee’s revised, accepted refereed final draft of (ii) all refereed journal articles resulting from the funded research must be (iii) deposited immediately upon acceptance for publication (iv) in the fundee’’s institutional repository, with (v) access to the deposit made free for all (OA) immediately (no OA embargo) wherever possible (over 60% of journals already endorse immediate gratis OA self-archiving), and at the latest after a 6-month embargo on OA.

    It is the above policy that H.R.3699 is attempting to make illegal…

    http://openaccess.eprints.org/index.php?/archives/867-guid.html

  5. Please see the comments from the Electronic Publishing Trust for Development on the EPT Blog, on http://www.epublishingtrust.blogspot.com/2012/01/attempt-to-block-oa-distribution-of-us.html.
    As commented by Helena Asamoah-Hassan, above, just as Open Access switched on the light at the end of the tunnel for researchers in the economically constrained countries, some publishers want to turn the light off again. This is a thoroughly retrograde step that is in direct conflict with the aims of researchers and their public funders who wish to allow their research to form building blocks for future progress.

  6. Peter Kruse says:

    It is only logical then that next time I am asked to do peer-review for an Elsevier journal, I should demand to get paid for it, since I am performing a private sector, value-added, for-profit contribution. I want some profit then, too!
    (Somehow I know that I will feel sorry for the author and the editor, who are my peers after all, and just do it for free again… Why are we scientists so easily taken advantage of? I don’t even think the editors get much if any compensation for their work…)

  7. This is stupid, unless you’re doing classified research, really there is nothing that either can’t already be found in an encyclopedia, or books already in published.

    No one has any real new knowledge, it’s just the same old repeat of 1800-1900 research. That private firms seem to rediscover or commercialize this ancient data bank and monopolize it, and then keep it secret from public scrutiny is ridiculous.

    Allowing this law to pass would allow people to monopolize knowledge only Nazi Germany, Dictator countries, communist China, and Russia under communist leadership was able to do that.

    Rarely do people seek to monopolize knowledge, or keep it behind closed doors.

    Science, it’s achievements are not new. They’re very simple principles that get used differently, but totally not new.

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