open content

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.

open content open education

Durbin Open Textbook Bill Finally Introduced!

Earlier this year I blogged about what I thought should go into an open textbook bill (with clarifications the next day). I’m extremely pleased that Senator Durbin has introduced a bill which closely resembles these recommendations and therefore, to my mind, is on exactly the right track. You can read Durbin’s remarks as he introduced the bill, and then study the full text of S. 1714 on GovTrack (where you can also subscribe to a feed of all bill-related activity).

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 content

Cornyn’s Remarks Introducing S. 1373

GovTrack has the full text of the remarks made by senators as they introduce legislation. Here are Sen. Cornyn’s remarks as he introduced S. 1373, the Federal Research Public Access Act:

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.