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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.

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H. R. 5037

As reported by the OA Librarian, Open Education News, and others, the Federal Research Public Access Act has been introduced in the US House. 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.



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.

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Harnad’s Response to my Pay Twice Post

Stevan Harnad takes issue with my Pay Twice argument. Since we’re both on the same team here, surely he won’t mind a response to his response.

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.