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Research Works Act Could Challenge Public Access to Federally Funded Research
Posted On January 17, 2012
H.R. 3699, the Research Works Act, was introduced Dec. 23, 2011, by Rep. Darrell Issa (R-Calif.), chairman of the Committee on Oversight and Government Reform, and committee member Rep. Carolyn Maloney (D-NY). According to the Association of American Publishers (AAP) website, “The legislation is aimed at preventing regulatory interference with private-sector research publishers in the production, peer review and publication of scientific, medical, technical, humanities, legal and scholarly journal articles.” Put another way, it is designed to thwart activities such as the National Institutes of Health (NIH) Public Access Policy, which requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funds to the digital archive PubMed Central upon acceptance for publication.

The bill is, as noted by the AAP in its press release, “significant legislation that will help reinforce America’s leadership in scholarly and scientific publishing in the public interest and in the critical peer-review system that safeguards the quality of such research.” The argument, an old one at that, is that publishers add value to journal content and requiring them to provide free access denies them revenues. The big ticket players in this game are journals such as Cell, Science, and Nature.

Specifically, according to Section 2. Limitation on Federal Agency Action. “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.”

As noted on the AAP website, “The Research Works Act 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. It would also prevent non-government authors from being required to agree to such free distribution of these works.”

The Copyright Alliance, a group that includes large media organizations such as the Recording Industry of America and Reed Elsevier, “praises U.S. Representatives Darrell Issa (R-CA) and Carolyn Maloney (D-NY) for their bipartisan introduction of H.R. 3699, the Research Works Act. The proposal would overturn an unprecedented federal government taking of copyrights from certain authors and researchers.” according to Copyright Alliance executive director Sandra Aistars. “This reversal of centuries of copyright law occurred without input from the affected communities, and without benefit of oversight by congressional committees with expertise and responsibility for copyright laws and enforcement.”

The point about not having input into these congressional committees is wholly incorrect. As a long time columnist on the subject of open access and copyright, the publishing lobbyists have had exceptional opportunities to influence copyright decision makers directly. This is an old issue that the Copyright Alliance is hoping to heat up and make it appear new. These issues were debated at length when the NIH policy was passed in 2008. I covered this extensively in Information Today as did others in different venues.

At the time of this writing, six members of the AAP—MIT Press, the Council on Library and Information Resources (CLIR), ITHAKA, Pennsylvania State University Press, The Rockefeller University Press, and the University of California Press—have publicly disavowed this bill. Other organizations, such as the Special Libraries Association, have strongly opposed this bill as well. An online petition site to stop the Research Works Act has also been set up.

“I want to state emphatically that I support the NIH Public Access Policy and think it should be expanded to other federal funding agencies,” states Mike Rossner, executive director of The Rockefeller University Press in a public letter. “All publishers of biomedical research understand several truths: 1) that their content is generated in large part through federally funded research, 2) that the peer review process is carried out in large part by federally funded individuals, and 3) that a significant portion of their subscription revenue is obtained from government funded institutions. Although publishers’ content may technically be considered ‘private-sector research work’ as described in the text of H.R. 3699, its very existence depends on public funding.”

Peter Suber, director of the Harvard Open Access Project, notes that the bill’s purpose is “To End Government Mandates on Private-Sector Scholarly Publishing” and “prevent[] regulatory interference with private-sector research publishers....” He comments, "This is the same rhetoric publishers have used for years. As usual, they neglect to say that the NIH policy regulates grantees, not publishers. They neglect to say that NIH-funded authors in effect ask publishers two questions, not one: “Will you publish my article?” and “Will you publish it under these terms?” It’s a business proposition that publishers are free to take or leave. Finally, the AAP and PSP neglect to say that 100% of surveyed publishers accommodate the NIH policy, or are willing to take that business proposition."

“There is one aspect of the proposed Act H. R. 3699 that is very interesting,” notes Arthur Sale, professor of computing at the University of Tasmania. “It is an admission by the publishers involved that they do not at present have any intrinsic intellectual property right to control the disposition of the Version of Record otherwise known as the ‘publisher’s pdf.’ The Act is an attempt to create a new right. You should read the full proposed Act. It is absurd, and badly drafted, perhaps deliberately to mislead.” 

Robin Peek was an associate professor at the Graduate School of Library and Information Science at Simmons College. She also wrote a monthly column called Focus on Publishing for Information Today.

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Comments Add A Comment
Posted By Stevan Harnad1/17/2012 12:58:20 PM

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


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...

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