Response to the US Chamber of Commerce on H.R. 5037

I recently received a copy of a letter the US Chamber of Commerce is circulating in opposition to H.R. 5037, the Federal Research Public Access Act. Since I decided to respond to the letter at length, I thought I would share my response with the community. Below I quote their letter in full with paragraph-by-paragraph responses to their argument.

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.

2 thoughts on “Response to the US Chamber of Commerce on H.R. 5037”

  1. David,

    A well founded and eloquently argued response. On behalf of the free culture – thanks for taking the time and effort to respond :-).

    These debates are reminiscent of the ice harvesting industry – In late 1800’s one of the largest earners of GDP in the US until the invention of compressor driven refrigeration. The rest is history and as a result I have no members of my family working in the ice harvesting industry.

    The OER movement will continue to develop free text books, teaching materials, open access research etc. The OER movement will continue to educate and support academics and researchers that they have a free choice. They can release the results of their creative works under licenses which grant permissions for the four Rs and they do not need to sign off their copyright to the distributors (rather than the creators) of knowledge.

    The marginal cost of reproducing digital content is near zero and consequently has no real market value. It’s not rocket science – one way to increase price is to restrict supply (through restrictive copyright provisions.) The difference now, in a digitally connected world, is that the creators of knowledge will now control how their creative works are distributed. At last we can return to the core values of education, and that is to share knowledge freely. This is what we are doing at the OER Foundation and we would like to help any individual or organisation to achieve their aims through the use of OER.

    David – were on the same side of the fence here and I just wanted to say BIG thanks for all the effort you are putting in over and above your normal working day.

    At the same time I would like to extend an open invitation to every publisher in the world to come and join us. The free culture will be publishing digital resources in support of all national curricula in the world under licenses which meet the free cultural works definition — and we aim to achieve this by 2015. We want to partner with open minded and innovative publishers who can provide print-on-demand customised texts and assist with their superior distribution channels. There is a win – win opportunity here. Let’s make OER futures happen 🙂

  2. One thing that has never been adequately answered by the OA crowd is why non-profit scholarly publishers simply do not offer their journals for free if, in fact, the cost of producing these journals is “negligible?” Members of the society own and operate the journals. So one could logically conclude that they are able to make the aggregate costs of subscriptions per capita equal to the estimated cost of production. In short, subscription cost are no more or no less the cost of production. Yet most of them retain subscription fees, indicating that there clearly is a cost associated with the journal’s production that the author here is so quick to dismiss as “negligible.”

    And entitlement mentality? I wonder if the author actually knows that he is just a pawn for the libraries that actually just want to pass the buck for the cost of peer review to the taxpayers by moving towards an author pays model – getting rid of the more economically efficient user-fee system that is currently in place. If any entity is hemorrhaging with entitlement hubris, it is the university community who want to stick it once again to the taxpayer, despite deep endowment pockets. Perhaps the hit their portfolios took in the early 2000s, precipitated again in 2008, has increased the fury to find new sources of money from the taxpayer.

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