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.

taxpayeraccess.org has more detail and information about how you can get involved. The awesome Govtracker is currently showing H. R. 5037 has having been referred to the House Subcommittee on Oversight and Government Reform. Go check and see if you have a congressman on the subcommittee. I do! I sent him this letter this morning.

Congressman Chaffetz,

I do live within the district.

Last April 16 we met for approximately 30 minutes to discuss issues of open access to research. I stated my belief that the taxpaying public – who are the true funders of federally funded research – have a correct expectation to see the results of the research work they have funded. I related that the NIH has already adopted a policy guaranteeing the public free and open access to the results of the research they fund, and I encouraged you to find opportunities to spread this increased openness and transparency to other federal funding agencies.

Recently, legislation was introduced that would accomplish this worthy goal across federal funding agencies. H. R. 5037, “To provide for Federal agencies to develop public access policies relating to research conducted by employees of that agency or from funds administered by that agency,” has been referred to the House Subcommittee on Oversight and Government Reform, of which you are a part. I strongly encourage you to support this legislation, and would be more than happy to meet with you again should you have any questions regarding its importance or value.

Sincerely,

David

Help get this important legislation passed! Let’s open access to unclassified research funded by the Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Transportation, Environmental Protection Agency, National Aeronautics and Space Administration, and the National Science Foundation. It’s ours, after all.

David Wiley’s version of the double-payment objection is only partly correct. To the extent that both research funding and research library funding are paid by the tax-payer, there is indeed some double-paying — but the one who gets the free ride is the publisher, who gets to charge for access to material most of which was funded by the tax-payer. (But not so for peer review, which the publisher manages, though the reviewing is again actually being done for free by the peers. Nevertheless, an honest broker is needed to manage the peer review, or else it’s vanity press. The cost of managing peer review is much less than the cost of publishing, but it will be an invariant expense that needs to be paid no matter what.)

I agree with Stevan’s criticism of the publishers’ free riding and have written about this in detail, as in this HR 801 Issue Summary co-written with students and distributed by SPARC. He seems to think publisher free riding is a bigger problem than asking taxpayers to pay multiple times for access to research. I suppose that’s his prerogative. I agree with the idea that the function of peer review needs to be decoupled from the function of publishing in future sensible business models (more on this below).

The double-pay objection is incorrect, however, when it is made from the standpoint of the subscriber institution. (Private universities’ journal budgets are not paid by tax-payers; and even public universities cover it partly out of student fees or other sources.) The institutional librarians who say “Our institution takes the trouble and expense to provide the research, gives it to publishers for free, only to have to buy it back for subscrption fees” are mistaken: An institution has its own research output: It’s buying in the research output of other institutions with its journal subscriptions. (So unless one thinks the same argument ought to be applied to books, there’s no valid double-pay objection here.)

My post doesn’t bring up the notion of institutions as objectors on the twice pay grounds. The objections Stevan raises above must be baggage he brings to the table from previous conversations. My post is focused very clearly on taxpayers, and this paragraph is completely irrelevant to my post.

But, last, the real rationale for Open Access is not the fact that tax-payers feel a burning wish or need to read the peer-reviewed reports of the often highly specialized research they fund. It is that if the research they have funded is to provide the maximal benefits to the tax-payers who funded it, it should be accessible to all of its intended users: the researchers who are in the position to use, apply and build upon the scholarly or scientific findings, and not just those whose institutions can afford a subscription to the journal in which they happen to be punished.

This is the part of his response that concerns me the most. It smacks of Pre-Reformation ideas about restricting access to the scriptures. “You’re not capable of properly interpreting the Bible yourself, so we’re justified in restricting access to the Book to the clergy.” You only have to change a few words here. “Normal taxpayers aren’t capable of understanding research so it’s ok if only qualified, PhD-holding people have access.” This kind of thinking starts us down a very dangerous path.

But the moral is the same: Both research funders and universities should mandate that all their peer-reviewed research articles are made freely accessible to all their potential users online (“Green OA”). If and when making all this peer-reviewed research freely available online makes journal subscriptions unsustainable as the way of recovering the costs of peer review, institutions can pay those true costs, by the outgoing article, out of just a fraction of their annual windfall savings from their subscription cancellations.

It’s unclear to me why universities are acceptable actors here when they weren’t two paragraphs above. As for research funders mandating that articles are made freely available, that’s what I’m arguing – taxpayers (the research funders) should implement measures (legislatively, through their representatives) that guarantee them access to research findings. And again, I do support the idea of separating peer review from publishing.

If you haven’t seen the published writing I’ve been doing (much of it with students) in the last few years, the majority of it is gathered on the David Wiley page in BYU’s ScholarsArchive. The articles include:

• Openness, Dynamic Specialization, and the Disaggregated Future of Higher Education
• Open for Learning: The CMS and the Open Learning Network
• The Four R’s of Openness and ALMS Analysis: Frameworks for Open Educational Resources
• The Open High School of Utah: Openness, Disaggregation, and the Future of Schools
• Psychologism and American Instructional Technology
• Open Source, Openness, and Higher Education
• Open Educational Resources: Enabling universal education
• Overcoming the Limitations of Learning Objects
• Collecting, Organizing, and Managing Resources for Teaching Educational Games the Wiki Way
• The Creation and Use of Open Educational Resources in Christian Higher Education
• A Unified Design Framework for Learning Objects and Educational Discourse
• Using Weblogs in Scholarship and Teaching

(PS. The system the library is using does not currently produce RSS feeds, so I’ve hacked together a Yahoo Pipe to produce a barebones RSS feed. The feed simply gives the names of all the articles on the site with a link to the main page. Hopefully a future update will make it easier to syndicate this information here and elsewhere.)

I am giddy with excitement to see some of my own published articles beginning to appear in BYU’s institutional repository – they now have an open, permanent, curated home and I can link to them with confidence. And the whole world can and will be able to access and read them, legally, in perpetuity! This is the way science should work.

For those who are interested, here’s the text of the IP&T policy:

The faculty of the Instructional Psychology and Technology Department adopts the following policy:

Each Instructional Psychology and Technology Department faculty member grants to Brigham Young University permission to make scholarly articles to which he or she has made substantial intellectual contributions publicly available as part of the Harold B. Lee Library’s ScholarsArchive system, or its successor, and to exercise any associated copyright in those articles. This includes the right to deposit, use, reproduce, perform, publicly display, distribute, and publish the scholarly articles in the university’s institutional repository or any other method or medium of delivery, whether now known or hereafter developed. Accordingly, the permission granted to the University by each faculty member is a nonexclusive, irrevocable, royalty-free, worldwide license to exercise the above-mentioned rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for profit and are properly attributed to both the author(s) and the journal of first publication, if applicable.

This license is not meant to interfere in any way with the rights of the IP&T faculty author as the copyright holder of the work. The policy will apply to all scholarly articles authored or co-authored while the person is a member of the IP&T Faculty except for any articles completed before the adoption of this policy which have existing licensing commitments or copyright assignments which are inconsistent with the intent of this policy.

The term “scholarly articles” includes articles prepared for presentation or publication, whether in electronic or print media. Other scholarly works in connection with the faculty member’s academic or professional activities may be included at the discretion of the faculty member.

The IP&T Department Chair or the Chair’s designate shall waive application of the policy to a particular article upon written request by a Faculty member explaining the need. The IP&T Chair, in consultation with the faculty, will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the faculty. This policy will be formally reviewed two years after implementation, by September 30, 2011.

As of the date of publication, each faculty member will make available an electronic copy of his or her final version of the article at no charge to a designated representative of the University Librarian’s Office in appropriate formats (such as PDF) specified by the University Librarian’s Office.

Open Access Policy Backgrounder

Open Educational Resources Policy Backgrounder

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.

Once upon a time there was an inventor. She was brilliant. All through the night and all during the day she dreamed, she schemed, she thought, she imagined. Then one day she had a “Eureka!” moment. She sketched out the design of her breakthrough product, and worked and reworked the design by showing it to friends and getting their feedback.

When she was satisfied that the design was ready to take to production, she began contacting venture capital organizations and banks. It was a long, painful process, but finally she acquired the funding she needed to put her ideas to work.

Flickr:PhillipC

Money in hand she began searching for employees – production specialists, designers, marketing experts, and others. Finding the right people for the enterprise was almost as difficult as finding the money to start the enterprise, but at last she succeeded in finding and hiring the right people for the job.

They all set to work. It was alternately glorious and tedious, fulfilling and demoralizing. There were false starts and breakthroughs; there was tension and laughter; there were tears of frustration and tears of joy. They persevered through it all, and at length the day arrived when they had a product ready to ship!

Relieved, the inventor began contacting shipping companies. But she could not believe what she heard. The truckers would deliver her goods, but only subject to the most unbelievable conditions:

• the inventor had to agree to ship her product via the one trucking company exclusively,
• this exclusive shipping deal had to be a perpetual deal, never subject to review or cancelation, and
• the truckers would be the ones who would sell her product to the public and the truckers would keep all the profits.

Every shipping company she contacted gave the same response. Dejected, but unwilling to see the fruits of all her labor go to waste, she eventually relented and signed a contract with one of the companies.

This is, of course, actually a story about a researcher and her interactions with the journal publishing industry. Why do more faculty not see that, as researchers, we come up with ideas for research, find grant funding for the research, identify and hire graduate students and other professionals to perform the research with us, carry out the research, write up the results of the research in a clear and concise manner, and then are forced to surrender all our rights in the written results of our research to a publisher who sells them for his own profit? Unfortunately, this lunacy is the water in which all academic fish swim, making it difficult to recognize. The purpose of the Trucker Tale is to help people see the insanity in academic publishing.

John,

Please let me very briefly explain the two reasons I oppose HR 801.

First, as a member of the taxpaying public, if I pay for research to be conducted I don’t expect to pay a second time to gain access to the results of the research. When the public pays for research, the research belongs to the public. In a time when budget shortfalls are at historically high figures, the idea that HR 801 would create or continue a situation in which taxpayers pay TWICE for access to research is appalling. The people’s representatives in government should now be looking for any and every opportunity to be better stewards of the people’s money. To the extent that government represents the people’s interest, our representatives in government should act vigorously to strengthen and uphold the NIH mandate and similar initiatives that insure the public only pays once for research.

Second, as an individual faculty member and researcher, under the traditional publisher system I am expected to:

- Come up with ideas for research,
- Find grant funding for the research,
- Identify and hire graduate students and other professionals to perform the research,
- Carry out the research,
- Write up the results of the research in a clear and concise manner, and
- Surrender all my rights to the written results of my research to a publisher.

I hope you can appreciate why I am opposed to a situation in which I and my team spend thousands of hours of effort on the research – only to have a publisher who spends a dozen or so hours coordinating the review of our article and editing our article claim complete ownership of our written work. And then they want to charge me for access to copies of my own work.

Please, do the right thing for the public. Represent us. Oppose HR 801. The only conceivable explanation for supporting HR 801 is that you have placed the public interest in a position secondary to the publishing industry’s perceived self-interest.

With respect,

David Wiley, PhD
David O. McKay School of Education
Brigham Young University