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.”