Dear Chairman Towns and Ranking Member Issa:

The U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than three million businesses and organizations of every size, sector, and region, opposes H.R. 5037, the “Federal Research Public Access Act,” and urges you not to bring it before the Committee on Oversight and Government Reform for consideration.

The U.S. Chamber of Commerce is a federation that represents the interests of businesses. While the Chamber undoubtedly has deep expertise in matters of business, it cannot speak with equal credibility about the conduct and dissemination of research. Those who can speak authoritatively on this topic, such as dozens of Nobel Prize-winning researchers, research universities, academic publishers, and others have spoken forcefully and unequivocally in expressing their support for the Federal Research Public Access Act.

H.R. 5037 would require that final manuscripts of peer-reviewed, private-sector journal articles that report on federally-funded research be made freely available on government-run websites no later than six months after their publication.

An important distinction must be made about what constitutes a “final manuscript.” At least three “final” versions are of interest – (1) the author’s final manuscript before peer-review occurs, (2) the author’s final manuscript incorporating improvements resulting from the peer-review process, and (3) the final manuscript incorporating editorial and formatting changes made by the publisher.

H.R. 5037 requires that the author’s final manuscript incorporating changes resulting from the peer review process (2 above) be made available freely available on the Internet (see Section 4.b.1 and Section 4.b.2). The final manuscript incorporating editorial and other changes made by the publisher (3 above) is not required to be made freely available to the public unless the publisher agrees (see Section 4.b.3.a).

Although the Chamber has previously advocated for, and continues to support, public access to the raw data resulting from federally-funded research, the Chamber believes that the government should not undermine the fundamental intellectual property rights for research works that reflect meaningful value-added by publishers.

I agree that raw data resulting from federally-funded research should be made freely available to the public. However, the assertion that intellectual property rights in the written analysis and results of federally-funded research should belong to publishers because of their “meaningful value add” is inappropriate at best and immoral at worst.

Consider the relative contributions to the research manuscript by the authors and the publishers. In terms of amount of contribution, the researcher is responsible to:

• Generate original, significant ideas for new research,
• Compete for and win grant funding for the research,
• Identify and hire highly qualified students and other professionals to conduct the research,
• Rigorously and responsibly carry out the program of research, and
• Write up the results of the research in a clear, communicative manner.

Other researchers who volunteer as editors and reviewers are responsible to:

• Receive the written results of the research,
• Coordinate volunteers who review the merits of the research results (this coordination is most often performed by the journal’s editor who is also a volunteer),
• Make a publication decision about the research results

Finally, publishers are responsible to:

• Edit and reformat the document, and
• Publish the results.

The researcher / author is responsible for the overwhelming majority of the effort that goes into conceiving, conducting, and reporting the research. While the publisher does make a small contribution to the manuscript, that contribution is dwarfed by the author’s contributions, demonstrating that intellectual property rights should clearly remain with authors and not be forfeited to publishers.

We can conduct a similar analysis from a financial perspective, taking the NIH as an example. The average annual dollar value of a National Institutes of Health (NIH) grant is between $210,769 (Gass, 2005) and $239,826 (Druss & Marcus, 2005). The scholarly published output of the average NIH grant is approximately 1.6 research articles per year (Druss & Marcus, 2005). This puts the average financial cost of generating a research article somewhere between $105,385 per article and $119,913 per article. By contrast, the average cost for a traditional, high quality journal to publish an article, including administrative, overhead, and other costs, is $2750 (Wellcome Trust, 2003).

(My apologies that readers may not be able to access all the articles cited above. If only they were freely available online…)

In terms of financial investment per manuscript, the publisher is responsible, on average, for between 2.2% and 2.5% of the overall investment resulting in the manuscript’s publication. Again, while the publisher does make a contribution, it is tiny compared to the investment of taxpayers, demonstrating that taxpayers have a reasonable expectation to the results of the research of which they are the primary funders.

Copyright protection provides an important incentive for publishers to invest in the peer review of, publication, and distribution of scientific journal articles about the latest government funded research. This commitment of resources by the private sector aids the advancement and integrity of science and contributes to substantial gains in research and other knowledge.

Peer review is both coordinated and performed by academics who volunteer as editors and reviewers. Publisher investment in this area is negligible and the supposed cost of providing peer review cannot be the foundation of a publisher’s incentive argument. Furthermore, some research (e.g., Harnad, 2004 or Eysenbach, 2006) suggests that manuscripts made freely available online are accessed and cited more often than manuscripts published under the traditional model. Consequently, manuscripts made freely available online result in even more “substantial gains in research and other knowledge” than manuscripts published under the traditional model. There is no need to provide publishers with incentives to sustain a sub-optimal model of knowledge dissemination.

The Chamber believes that this legislation would undermine incentives for journal publishers to invest in the peer review, editing, publishing, dissemination, and archiving of scientific journal articles. As a consequence, the bill would diminish the high quality of scientific and other scholarly research in the United States as well as endanger American jobs within the publishing industry.

The legislation will decrease incentives for journal publishers to make their traditional investments. However, continued investments in the pre-Internet model of knowledge dissemination are not necessary. To claim that a decrease in publisher investment in the traditional manuscript publication model would diminish the quality of scholarly research in the United States is somewhat narcissistic on the part of the publishers. American jobs within the publishing industry are only in danger as long as publishers cling to pre-Internet models of knowledge dissemination.

The Chamber looks forward to working with you and other members of the committee to ensure that the public is provided access to the results of federally-funded research in a manner that also respects the rights of the publishing community.

The publishing community has no a priori right to the results of federally-funded research, but the taxpaying public does. The Chamber’s letter demonstrates an infuriating entitlement mentality on the part of publishers. Clearly, publishers would prefer to continue the current intellectual sharecropping system in which researchers provide all the labor but publishers hold all the rights in the results of their work.

This entitlement mentality is somewhat understandable since the publishing industry has become addicted to several decades of government subsidy. As demonstrated above, the federal government subsidizes over 97% of the cost involved in publishing these research manuscripts. The only explanation for an academic publisher like Elsevier’s ability to make over $1 billon in profit during both 2008 and 2009, during what their 2009 annual report describes as an “unprecedented global recession,” is the fact that taxpayers fund the development of the products that publishers sell.

The current state of affairs tramples on the rights of both the taxpaying public and the country’s researchers while lining the pockets of academic publishers. H.R. 5037 makes progress toward remedying this outrageous situation. I look forward to the day when the public is provided free access to the results of federally-funded research in a manner that respects the rights of the taxpaying public who made it possible.

The bill creates a competitive grant program supporting the creation of open textbooks, and most importantly requires applicants to submit:

(C) a plan for distribution and adoption of the open textbook to ensure the widest possible adoption of the open textbook in postsecondary courses, including, where applicable, a marketing plan or a plan to partner with for-profit or nonprofit organizations to assist in marketing and distribution; and

(D) a plan for tracking and reporting formal adoptions of the open textbook within postsecondary institutions, including an estimate of the number of students impacted by the adoptions.

This is terrifically exciting to me, as it will bring a real sense of urgency of impact into the discourse, and provide the OER community with good data and metrics to talk with confidence about the amount of money students are saving thanks to open textbooks.

The most interesting part of the bill is Section 5. on LICENSING MATERIALS WITH A FEDERAL CONNECTION:

In General- Notwithstanding any other provision of law, educational materials such as curricula and textbooks created through grants distributed by Federal agencies, including the National Science Foundation, for use in elementary, secondary, or postsecondary courses shall be licensed under an open license.

This language provides nothing short of an NIH-style mandate on all publicly funded curriculum, and does not appear to be limited to the textbooks whose creation is funded by the bill. This is huge! It’s like FRPAA for educational materials!

Those of us who consulted on the drafts during the spring / summer were waiting to see how Durbin would choose to deal with the licensing issue, and the bill takes a middle road, requiring textbooks funded under the program to also use an “open license,” which the bill defines as “an irrevocable intellectual property license that grants the public the right to access, customize, and distribute a copyrighted material.” No specific license (or family of licenses) is mentioned or required.

This is a great day for the open education movement! If you have a representative on the Senate Health, Education, Labor, and Pensions Committee, contact them to make sure they support this legislation!

Sen. John Cornyn [R-TX]: [Introducing S. 1373] Mr. President, I rise to introduce the Federal Research Public Access Act. I am very pleased to be joined again by my good friend and colleague, Senator JOE LIEBERMAN, who has remained dedicated to seeing this important legislation passed. This bipartisan bill is the same legislation we introduced in the 109th Congress. The purpose of this legislation is to ensure American taxpayers’ dollars are spent wisely, which is even more important now in this time of fiscal tension.

To put things in perspective, the Federal Government spends upwards of $55 billion on investments for basic and applied research every year. There are approximately 11 departments/agencies that are the recipients of these investments, including: the National Institutes of Health, National Science Foundation, NASA, the Department of Energy, the Department of Defense, and the Department of Agriculture. These departments/agencies then distribute the taxpayers’ money to fund research which is typically conducted by outside researchers working for universities, health care systems, and other groups.

While this research is undoubtedly necessary and is beneficial to America, it remains the case that not all Americans are capable of experiencing these benefits firsthand. Usually the results of the researchers are published in academic journals. Despite the fact that the research was paid for by Americans’ tax dollars, most citizens are unable to attain timely access to the wealth of information that the research provides.

Some Federal agencies, most notably the NIH, have recognized this lack of availability and have proceeded to take positive steps in the right direction by requiring that those articles based on government-funded research be easily accessible to the public in a timely manner. I am proud to report that the NIH’s public access policy has been a success over the past few years. By the NIH implementing a groundbreaking public access policy, there has been strong progress in making the NIH’s federally funded research available to the public, and has helped to energize this debate.

Although this has surely been an encouraging and important step forward, Senator LIEBERMAN and I believe there is more that can and must be done, as this is just a small part of the research funded by the Federal Government.

With that in mind, Senator LIEBERMAN and I find it necessary to reintroduce the Federal Research Public Access Act that will build on and refine the work done by the NIH and require that the Federal Government’s leading underwriters of research adopt meaningful public access policies. Our legislation provides a simple and practical solution to giving the public access to the research it funds.

Our bill will ask all Federal departments and agencies that invest $100 million or more annually in research to develop a public access policy. Our goal is to have the results of all government-funded research to be disseminated and made available to the largest possible audience. By speeding access to this research, we can help promote the advancement of science, accelerate the pace of new discoveries and innovations, and improve the lives and welfare of people at home and abroad.

Each policy that these departments and agencies develop will require that articles resulting from federal funding must be presented in some publicly accessible archive within six months of publication. In doing so, the American taxpayers will have guaranteed access to the latest research, ensuring that they do not have to pay for the same research twice–first to conduct it and then again to view the results.

This simple legislation will provide our government with an opportunity to better leverage our investment in research and in turn ensure a greater return on that investment. All Americans stand to benefit from this bill, including patients diagnosed with a disease who will have the ability to use the Internet to read the latest articles in their entirety concerning their prognosis, students who will be able to find full abundant research as they further their education, or researchers who will have their findings more broadly evaluated which will lead to further discovery and innovation.

While a comprehensive competitiveness agenda is still a work-in-progress, this legislation is good step forward. Providing public access to cutting-edge scientific information is one way we can encourage public interest in these fields and help accelerate the pace of discovery and innovation. In promoting this legislation, I hope to guarantee that students, researchers, and every American can access the published results of the research they funded.

Recipients of awards are expected to publish or otherwise make publicly available the results of the work supported through this program. Institute-funded investigators should submit final, peer-reviewed manuscripts resulting from research supported in whole or in part by the Institute to the Educational Resources Information Center (ERIC) upon acceptance for publication. An author’s final manuscript is defined as the final version accepted for journal publication, and includes all graphics and supplemental materials that are associated with the article. The Institute will make the manuscript available to the public through ERIC no later than 12 months after the official date of publication. Institutions and investigators are responsible for ensuring that any publishing or copyright agreements concerning submitted articles fully comply with this requirement.

Perhaps even more exciting is news today about the reintroduction of the Federal Research Public Access Act (FRPAA) today by U.S. Sens. John Cornyn, R-TX and Joe Lieberman, I-CT (it was originally introduced in 2006). The legislation would “require every federal department and agency with an annual extramural research budget of $100 million or more to make their research available to the public within six months of publication.” Sen. Cornyn’s press release has more details.

This would mean that in addition to the existing NIH and IES mandates, we would have mandates in place for all research funded by NSF, DofEd, DofEnergy, and almost every other federal agency. Things are moving along! First, NIH, then IES, and now FRPAA has been reintroduced… It’s almost as if we’re slowly iterating toward openness.

30. Educational Resources in the Public Domain – to study how curriculum materials and other learning resources created with state funds may be placed in the public domain.

If the public pays for it the public deserves free access to it, right? Looks like we’re one step closer to a more formal conversation about OER here in Utah!

I’ll happily address it here, but Stephen’s comment also ignores my main point.

First, let me deal with the suggestion that price will not drop at all. A content-complete openly licensed version of the book online is all the price control that is needed. The existence of this version controls price by providing an alternate mechanism for accessing the content. If you really want a printed version, and you can purchase one for $25, you’ll purchase one. If you really want a printed version, but you can only buy one for $75, you’ll just print out all the pages at Kinko’s and put them in a three-ring binder. More than one person will create and distribute (legally) a PDF that makes printing for your three ring binder really easy, and no one will purchase the $75 version from the publisher. The same is true for an audio version, etc. So the existence of the free version provides price control all by itself. If the publisher wants to sell books, those books have to satisfy Wiley’s magic formula of open book sales:

(Purchase price) must be lower than (price to print your own + the hassle of preparing to print your own)

I’ve edited or written chapters for a number of books that were available in commercial print editions as well as in an openly licensed, content-complete online format. As a concrete example, print copies of my learning objects book sold like hotcakes because the price to purchase a printed copy satisfied the magic formula. If the publisher had priced the book higher, it simply wouldn’t have sold.

Now, I must ask Stephen to comment on my main point with regard to the necessity of publisher participation in open textbooks. I would estimate that – speaking of existing open textbooks that do not have the marketing support of a commercial publisher – there are more open textbooks in the world today than there are classes in which open textbooks have been adopted. Simply funding the creation of more textbooks will not lead to an increase in classroom adoptions; rather, it would perpetuate the current unsatisfactory state of affairs. So I would ask a question and pose a challenge.

Question: In the case of open textbooks, is there a more important metric for success than course adoptions?

Challenge: Propose a more effective method for achieving adoptions than involving organizations with adoption-specific expertise and providing them a market incentive.

Stephen asks, “You mean [you can work around these problems using legislative and RFP language] the way it has been in other legislation and RFP processes? Seriously, there is enough room for scepticism here to drive a truck through.”

Yes, I think you can – if you only release the grant money in portions as people meet milestones. Especially if you only fund authors in the first phase, and publishers don’t receive any funds until they meet their first milestone, which is posting a content-complete version of the textbook with all source files on a public server under an open license. There are probably other ways to accomplish this, but yes, I think we can.

Finally, Stephen says (and I’m snipping for space) “There is a whole line of my reasoning that you simply don’t get… it’s a perceptual issue, not an issue of reason or rationale… Go to a grocery store in the inner city and then go directly to the same brand grocery store in the suburbs. The inner city store is not only smaller and dirtier, it has fewer choices and they are more expensive. The suburban store is larger, nicer, and cheaper… If you haven’t _seen_ this, you can work yourself into a state of denial that this sort of structure can exist in an economy. Much less understand that it is absolutely _fundamental_ to the economy… Markets are based on *denying* *access*. It is easier to deny access to poor people, because they have no rights. If you are not even willing to SEE this, then you cannot engage in a discussion of how it is happening in the current case.”

I agree completely that this happens. I grew up in one of the poorest parts of the US, lived in the most rural parts of Japan, etc. Who can deny that this problem exists? Even worse than grocery stores is access to lines of credit. “Poor” people pay interest rates many times over again what “wealthy” people pay, for these same reasons you outline above.

My response to your comment was a question, which went unanswered – how are open textbooks supposed to deal with this very real problem that we agree exists? Should we ~not~ distribute the online versions for free, because only wealthy people can get online (supposedly)? Should we ~not~ distribute printed copies, because we will have to charge for them? Should we scrap the idea of open textbooks and the university courses that require them altogether? There must be an implied action behind your criticism. What are you suggesting we DO?

There have been a variety of creative proposals for solving the “access to credit for poor people” problem, like microlending. Rather than criticizing open textbooks because of larger systemic inequities, can we invent the “microlending” solution of the textbook world? And most importantly, does the kind of progress on open textbooks I’m suggesting need to wait for this other solution to be discovered? In other words, is it all or nothing?

Ben Werdmuller asked, “Is there any reason for not including the whole range of permissive CC licensing, including the Public Domain one?”

Yes indeed! For one, I think it is crucial that the licenses allowed all be remix-compatible with one another. That means no ND license (no remix is allowed at all) and only one SA license (otherwise, no remixing is possible across works). BY and CC Zero (in effect a public domain license) are remix compatible with everything, as would be a public domain dedication (let’s please remember that licenses only apply to copyrighted material – since materials in the public domain are not copyrighted they can’t have a license!). Using NC is likely important to incentivize publisher participation, which I address below.

Can’t you see the headline two years from now as the first biology and chemistry textbooks are released, and someone goes to remix a biochemistry text only to find that they can’t because one is BY-SA and the other is BY-NC-SA? It would be a classic government mess-up – pour millions into open textbooks without the foresight to make sure that all this “open” content can be remixed. What a PR disaster.

On further reflection, it seems to me that something really useful to do in a separate, parallel bill is as follows: First, require any curriculum material (including textbooks) produced with federal grant dollars to be (c) the authors (not their home institution or government). Second, require the finalized content and all source files to be posted on a public website under a BY-NC-SA license. This simultaneously fulfills the mantra “if the public pays for it, the public should have free access to it” while providing the commercialization possibilities that will let the work live more than a week beyond the initial grant.

I’m really obsessing right now about how to make things live beyond their grant funding.

Stephen Downes commented that requiring a letter of support from a reputable publisher committing to partner on the proposal “would torpedo the whole project.”

On the contrary, such a partnership is the only thing that could give the project any value at all.

The primary goal of this piece of legislation is to get faculty to adopt open textbooks, thereby saving students money spent when faculty adopt traditional, ridiculously priced textbooks. There are a number of other potential benefits from the existence of open textbooks, but open textbook legislation is about saving students money. Period. If you’re interested in accomplishing a different goal (like reinventing the higher education system), you need to run a different bill.

As a group (there are, of course, exceptions) universities and their faculty are famous for the glacial pace at which they adapt to changes in their environment. The textbook adoption process is an excellent example of something not likely to change anytime soon. Here’s how it works for many faculty (especially those teaching high enrolling courses):

• Companies with textbooks to sell find out what courses you’re teaching.
• The companies contact you about books they sell that might meet your needs.
• A few free review copies of books from several publishers hit your desk for review.
• You dig through the pile of review copies, find the book you like best, and adopt it. (You can’t keep teaching from your current book because the publisher doesn’t print it any longer – it’s 18 months old!)

Faculty have been embedded in this process for decades. You can claim it’s evil, you can say whatever you want to say about it, but nothing you say will change the fact that this is how adoption works. Faculty are used to be catered to, marketed to, and brazenly courted by publishers.

So, imagine that publishers are beating down your door to give you free copies of their books (which come complete with test item banks, a solution guide, and presentations to use in class) and arguments about why their book is the best. Given everything else you have to do, are you really likely to say, “Self, I have a hunch there’s a free alternative out there on the web. Let’s take an hour or two and go find it. I know it may not come with test item banks, solution guides, or classroom presentations, but I can spend another couple of dozen hours building those because I am committed to principles of affordability, transparency, and openness.” If you’re reading this blog post, the answer is probably “Yes!” However, if you’re an average faculty member trying to keep his head above water, the answer is a resounding “No.”

The lesson is this – unless a nice looking printed copy of an open textbook lands on the desk with the others, and someone pursues you as a potential adoptee, and tells you about all the value-added materials that come along with the open textbook, the open textbook never even gets considered for adoption. What do you have then? The general state of the field today – a few hundred open textbooks online in places like Connexions, Wikibooks, Textbook Revolution, and other sites, that the average faculty member has never heard of and never will hear about, because there is no mechanism for those books to get into the standard adoption process / pipeline.

An open textbook needs a partner that knows something about textbook adoption. Without one, you’ll have blown through $50 million of the public’s money and not changed the situation a bit.

A publisher with a demonstrated marketing track record (one that knows how to market textbooks and actually get them adopted) is a critical piece of any open textbook legislation. By now we should be way beyond the naivete of thinking that we can throw a textbook into a website (even one with print on demand) and have a meaningful number of faculty adopt it.

Stephen also comments, “you don’t want the textbook producers to deliberately undermine the free web version (eg., by making the server so slow its impossible to download, by using obsolete content formats, etc etc)”

I believe these concerns can be worked around with the language and requirements of the legislation / RFP.

Finally, Stephen comments, “you don’t want to create a situation where the poorest or most disadvantaged pay the costs – having print and audio versions for a fee means that people without computers and people who are blind must pay for their copies, while richer fully sighted people can get it for free.”

I don’t understand this comment. Is this an argument against providing free access to online versions of open textbooks? Is it an argument that physical formats should be given away for free, with someone eating the cost on paper, printing, warehousing, shipping, etc.? Is it an argument that all formats should be free to the public, regardless of whether they are digital or physical, effectively eliminating any ability to sustain the activity over the long-term?

Please keep your comments coming!

The legislation would create competitive funding opportunities to create open textbooks in any content area. These would be multi-stage grants (like the SBIR program), with additional funding tied to the successful completion of initial project goals.

Individuals, teams of individuals, or organizations would complete an application in which they would provide the following information:

- The approximate number of US post-secondary students annually who take a course in which the text could be used appropriately
- The average cost of the five most widely adopted competing textbooks
- Content and pedagogy-related credentials of individuals who will serve as authors for the open textbooks, including honors like teaching awards in the area
- A letter of support from a reputable publisher committing to partner on the proposal. This partnership must include the provision of traditional publishing services like editorial support, design / layout support, and the creation of supplemental materials (like slides and exams).
- A management plan for author and publisher functions, including timelines and responsible parties
- A marketing plan for the textbook, including prices for all planned formats of the book (excluding the web version which will of course be free, but including paperback, hardback, audio, etc.) and a target number of student adoptions in the first two years after publication
- A licensing statement from the authors and project partner stating which license they will use for their open textbook – either CC BY or CC BY-NC-SA

All grant recipients would have to meet a handful of requirements:
- A content-complete version of the open textbook must go online with all text, images, and other features of the printed version available to the public for free, unrestricted, unfettered access
- The online version of the open textbook must clearly display it’s open license and include appropriate embedded license metadata to allow search engines like Google and Yahoo to index it as an openly licensed resource

Proposals would be evaluated according to:
- The estimated financial impact of the project (the number of students in the course annually x the average cost of the five most widely adopted books is the baseline; the target number of adoptions x average cost of the formats to be offered is the comparison point)
- Credentials and track record of the authors
- Credibility and track record of the publisher
- Feasibility of the management and marketing plans

After-grant reviews would pay attention to only one metric – the number of students impacted by verifiable adoptions is the ultimate measure of success. Projects that reach year 1 and 2 adoption goals as stated in the funded proposal would be eligible for update / enhancement grants.

Comments? Thoughts? Arguments?

To require Federal agencies to collaborate in the development of freely-available open source educational materials in college-level physics, chemistry, and math, and for other purposes.

After quoting a number of findings about how completely out of control the textbook market and textbook prices are, the bill goes on to say:

The head of each agency that expends more than $10,000,000 in a fiscal year on scientific education and outreach shall use at least 2 percent of such funds for the collaboration on the development and implementation of open source materials as an educational outreach effort… There are authorized to be appropriated $15,000,000 to carry out this section for fiscal year 2010 and such sums as necessary for each succeeding fiscal year.

The program is to be jointly run by the Director of the NSF and the Secretary of Energy, and the money dedicated to the program will be used to award grants of two kinds:

(1) to develop and implement open source materials that contain educational materials covering topics in college-level physics, chemistry, or math; and

(2) to evaluate the open sources materials produced with the grant funds awarded under this section and to submit a report containing such evaluation to the Director and Secretary.

Wow. I am speechless. I’ll now have to split my energy between working to defeat HR 801 and working to get HR 1464 passed. I may not sleep for a very long time….