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
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.