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.

I wonder at what point the following progression of scenarios crosses from an area where my expectation is reasonable into an area where my expectation is unreasonable:

1. I walk into a restaurant and pay $5.99 for the day’s special. I expect to be served the food and to be able to eat the food.

2. Two friends and I pay $65 each for tickets to a professional basketball game. I expect to be allowed to sit in the seat listed on my ticket and to get to watch the entire game.

3. My family pays $250,000 for a home. I expect that my family and I will be able to live in the home.

4. My community implements a one-time tax to pay for a new playground, and I pay the tax. I expect that my family will be able to use the new playground.

5. My state government implements an ongoing tax part of which is used to build and maintain roads, and I pay the tax. I expect to be able to use the roads.

6. My national government implements an ongoing tax part of which is used to fund the conduct of research, and I pay the tax. I expect to be able to see and use the results of the research.

7. My national government implements an ongoing tax part of which is used to create educational materials, and I pay the tax. I expect to be able to use the educational materials.

In the current system there is a point around (6) where a change occurs and I am expected to pay twice for the same good or service. For example, say my taxes are used by NSF to fund research, and the results of this research are published in an expensive academic journal. After having paid once for the research to be conducted, now I’m supposed to pay again to subscribe to the journal to find out what the results were? It’s like paying for a pizza only to be told that the original fee was to have the pizza made and baked, put that I’ll have to pay again (and substantially more this time!) if I want to be able to eat the pizza.

Why is the pay-twice model ok for 6 and 7, but not acceptable for 1 or 2? It isn’t. If I pay for a good or service, I’m entitled to it. If taxpayers pay to support research or the creation of educational materials, we are entitled to use those results and resources.

Buried beneath the much-deserved hullaballoo over the passage of health care reform were big changes that the reconciliation bill makes to the federal student loan program… Less noticed, however, is a provision that was in the House-passed Student Aid and Fiscal Responsibility Act (SAFRA) this fall, but dropped from the final version that passed last night…. [W]ith Pell Grant spending up due to the poor state of the economy, and the pressure to keep the total cost of the bill down while achieving expanded health insurance coverage and deficit reduction, the AGI got left on the cutting-room floor.

The American Graduation Initiative (AGI) was the Obama-backed initiative that included $50M/yr for open online courses for the next ten years (i.e., $500M for OER). These courses would have provided critical content infrastructure for innovative education experiments, and we needed them desperately.

Shucks. Maybe next year.

[N]o particular religion can or should have the means to impose its particular view on society. This is not to say that people can not or should not live and represent their moral and spiritual values. Nobody has a problem with that, not even the atheists. Rather, it means that if you advocate “policy x” because your religious views compel you to do so, your advocacy of “policy x” will have to be on the basis of its own merits, not because “Canada was founded based on the principles of religion y”…. Play the religion card with great caution. You may be religious; I don’t care. But when you try to cram religion into government, I get very very upset.

Indeed, people absolutely should live and represent their moral and spiritual values. To live out of harmony with your own values is hypocrisy. And yes, people should absolutely advocate for the principles and values they believe in, regardless of whether their personal conviction comes through faith, reason, or a combination of both. Likewise, when engaging in the act of advocacy, it is important to speak in terms that will be best understood by those to whom you are advocating. Sometimes this will be the language of faith, sometimes the language of reason, and sometimes a combination of both.

This means that sometimes people of faith will sometimes be best served by using the language of reason. It also means that people who do not consider themselves people of faith will sometimes be best served using the language of faith. Neither person should find these necessities offensive. It does mean, however, that each needs to study and cultivate a sense of respect for, and working knowledge of the language of, the Other. And it seems to me that this willingness to care about the Other is, sadly, too often absent from public discourse.

Me: Would you be willing to share the lesson plans and other materials you create with others for them to reuse?

Teacher: Sure!

Me: Great! The best way to do that is by applying this Creative Commons license to your work.

Teacher: A copyright license?

Me: Right. So that others know for certain that they’re allowed to reuse, revise, and redistribute your work.

Teacher: I don’t think I can make copyright assignments. I’m happy to share informally, but when it comes to formal sharing, I don’t know who actually holds the copyright in the materials I create for use in my class. Sorry.

After hearing this a few times I dug into the Utah Administrative Rules to answer the question of who owns the work teachers produce for their own use in their own classrooms. The answer? The issue was not addressed anywhere in the UAR. A call to the State Superintendent’s office and some research by their staff confirmed that there was no explicit statement about who owned the teachers’ work. Consequently, no one knew who could share what with whom.

So, last summer I testified at a meeting of the Interim Education Committee and had a longer conversation with our State Superintendent and one of his staff asking for a new Administrative Rule, explicitly stating that teachers can in fact share their work under open licenses. State Superintendent Larry Shumway then grabbed a hold of the idea and worked on making it happen.

The result is the shiny new Rule R277-111: Sharing of Curriculum Materials by Public School Educators, which includes the following language:

The purpose of this rule is to provide information and assurance to public school educators about sharing materials created or developed by educators primarily for use in their own classes or assignments. The intent of this rule is to allow or encourage educators to use valuable time and resources to improve instruction and instructional practices with assistance from appropriate materials developed by other educators….

Utah educators may share materials under a Creative Commons License and shall be personally responsible for understanding and satisfying the requirements of a Creative Commons License…

The presumption of this rule is that materials may be shared. The presumption is that Utah educators need not seek permission from their employers to share personally-developed materials.

I haven’t done an in-depth review of state policies, but I believe that Utah is one of the first (if not the very first) to formally adopt language (a) saying that teachers are allowed or encouraged to share their educational materials or (b) actually mentioning Creative Commons by name. Many thanks to Superintendent Shumway and his staff for making this happen!

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.

Throughout the late 20th century, and into the early 21st, when we spoke about “innovation” we largely meant impressive technical feats. Think Jobs and Woz creating the Mac, or Larry and Sergey creating Google, or the kinds of things Tony Hirst and Jim Groom seem to pull off regularly. We made heroes of the two geeks working in their mom’s garage… We made heroes of the lone coder, working late at night armed only with Emacs and Mountain Dew. These legends engaged in mythical man-versus-nature battles, subduing the wild frontier of source code and bending the Internet to their wills. They’re just plain cool.

However.

The kind of innovations these legends produce – technological innovations – are the easy kind of innovation. They are innovations that manipulate inanimate entities free of agency. During John Seely Brown’s visit to BYU last week, I heard him say that while the 20th century was a time of technological innovation, the 21st century must be a time of institutional innovation. This is the most insightful statement I’ve heard made in recent memory. It impacted me deeply, as it neatly summarized a frustration I’ve been feeling more and more keenly.

Anyone who has worked to reform an institution will readily admit that the more people are involved, and the more they are invested in maintaining the status quo, the harder it is to affect change. Even something as small as a stepwise incremental policy change can be a multi-year battle. I can hear you now thinking, “Just burn it down and plant a new institution in the ashes,” or “Just punch out and create a new institution to compete with the first.” Sometimes these are legitimate approaches to getting things done, but sometimes they aren’t. I seem to keep finding my interests lie in problems and institutions where these more radical methods simply don’t seem to apply. This seems to portend many difficult years ahead for me.

Imposing your will on bits and bytes is “easy.” Leading an established institution through the valley of the shadow of reform and up the opposite bank toward innovation is “hard.” But it is absolutely critical work, and precious few people are in positions that afford them opportunities to provide this kind of leadership.

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!

Open Access Policy Backgrounder

Open Educational Resources Policy Backgrounder