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On February 14, 2013, the Fair Access to Science and Technology Research Act (FASTR) was introduced in both houses of Congress. A successor to the once again defunct Federal Research Public Access Act (FRPAA), FASTR covers the same agencies as the former proposed legislation and similarly mandates public access within 6 months of publication, through unspecified open access repositories, to the final versions of peer reviewed manuscripts that report results of certain federally funded research. FASTR differs from FRPAA in its inclusion of a provision for covered agencies to coordinate the policies they develop in response to the legislation and inclusion of provisions requiring open licensing of research so that it may be reused under certain conditions.
The introduction of FASTR, particularly its open licensing provisions, immediately drew praise from open access supporters, including library and public interest organizations, and scorn from publishers. Association of College and Research Libraries President Steven Bell stated in that organization’s letter of support: “I am particularly pleased that this legislation addresses both greater access to research and greater reuse through open licensing. As scholars undertake new research, it is crucial to build on the works of others who came before. Open licensing is an important step towards a more open system of scholarship as it facilitates subsequent reshaping into new scholarship.” On the other side, the Association of American Publishers (AAP) called the new bill a “boondoggle.” AAP Vice President Allan Adler complained: “This bill would waste so much taxpayers’ money at a time of budgetary crisis, squander federal employees’ time with busywork and require the creation and maintenance of otherwise-unneeded technology all the while ignoring the fact that its demands are already being performed successfully by the private sector.”
While the press and others were still spinning support and criticism of FASTR, the Obama administration through the White House Office of Science and Technology Policy (OSTP) released a public access directive on February 22, 2013 that commands Federal agencies with over $100 million in annual research expenditures to “develop a plan to support increased public access to the results of research funded by the Federal Government…[including] any results published in peer-reveiwed scholarly publications that are based on research that directly arises from Federal funds.” Similar to FASTR, the directive encourages agencies to work collaboratively in the development of public access plans. The directive, drafted in response to a 65,000 signature petition calling for action and to comments filed in response to 2011 OSTP Request for Information, specifies the features these plans must incorporate, including strategies to foster public discovery and access of scholarly research and to either utilize existing archives and repositories or develop new partnerships for creation of modes of open and public access. Unlike FASTR and its predecessor bills, the directive calls for a 12 month (rather than a six month) embargo. Drafts of these plans are to be submitted by covered agencies to the OSTP within six months for its issuance.
As expected, the OSTP directive garnered immediate praise from open access advocates. Surprisingly, however, the AAP also came out in support of the directive, leaving one to wonder if perhaps a better alternative to FASTR had been born. One way the OSTP directive improves upon FASTR is in its stroking of publishers’ egos by recognizing the services they provide and by seemingly recognizing their interests as stakeholders. As the AAP response praises: “As one of its core principles, the policy ‘recognizes that publishers provide valuable services…that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available.’” The incorporation of the 12 month embargo similarly makes the OSTP directive more palatable to publishers. The writers at the blog Scholarly Kitchen, which frequently directs criticism at open access endeavors, specifically called out the 12 month embargo and the ability for agencies to petition for an extended embargo period if data was presented to support the request. Embargo periods, as the blog points out, are often established without much rationale or evidence (and are frequently the subject of debate among open access advocates and opponents alike). The provision for establishment of an embargo period supported by data may very well be a positive step.
Aside from seemingly making publishers happy, there may be other reasons to position the OSTP directive as superior to FASTR, or at least as a necessary complement or supplement to the as of yet enacted legislation. The FASTR bill only covers public access to scholarly publishing; the OSTP directive covers both publications and data. This recognition of the importance of access to research data is certainly an improvement and a recognition of changes in policy already taking place at some federal agencies, including the National Science Foundation. Another improvement of the OSTP directive over FASTR is by its definition it applies to more agencies than FASTR. This larger umbrella includes agencies such as the Smithsonian Institution, which are excluded from FASTR. A final positive of the OSTP directive is its effective date: immediately. Agencies are under an immediate mandate to start crafting policies and publishers are put on notice that they must be open to working with agencies to carry out the objectives of the directive. Rather than spending energies lobbying for or against proposed legislation, these groups can direct their attentions to doing real work that will culminate in real results. Granted, the directive could easily be stricken in four years with a new administration; whereas legislation takes an act of Congress or the U.S. Supreme Court to be nullified. However, the force and effect of an executive order to move forward rather than continuing to spin wheels is certainly a better and perhaps truly “faster” means to an end than the FASTR bill.
Is academia at war with the publishing industry? Today, University of Michigan Dean of Libraries Paul Courant wrote that publishers have declared war upon us. Columbia University’s James Neal claimed at this Spring’s ACRL conference that the academic library community is, in fact, at the center of this war. In recent months, with actions being taken that chip away at fair use and other copyright exemptions allowed libraries and educators, it is starting to feel that we may be losing the war; and with shrinking budgets and governmental affronts to our existence, we may even feel powerless to fight for our survival.
However, we may have a viable defense that could very well preserve our place as conduits to learning and knowledge. “Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival,” wrote Duke University Scholarly Communications Officer Kevin Smith this morning in response to the latest attack (an STM publishers’ association issued guidelines whose underlying purpose is to undermine international interlibrary loan practices) on educational use of copyrighted works. Open access has been touted for several years as the vehicle for revolutionary change in scholarly communications, and it still stands as our best chance for radically changing the economic climate that is leading to assaults upon barrier-free sharing of knowledge and information. However, for us to win this war, we all need to participate: librarians and faculty alike. And our efforts need to be consistent and persistent.
In this month’s Bulletin of the American Society for Information Science and Technology, the open access movement is lauded for single, albeit sporadic, milestones; but “these single events that showed the potential to cause a sudden, radical or complete reform of the entire [scholarly communications] system have failed to precipitate a complete transformation.” The authors of the Bulletin piece claim that librarians can be the most victorious soldiers in this war that we are in. However, it will take a widespread and collective movement to not only survive but even win. There are many libraries and universities out there who are to be commended for their efforts – who have established open journal publishing systems, who have adopted open access mandates, and who regularly promote open access through Open Access Week and other public events. Librarians at Duke University Medical Center Library, in a recent article in Serials Review, offer even more ways of how librarians can successfully incorporate open access into their work and bolster our defense against the war that is waging against us. In addition, legislation such as the Federal Research Public Access Act needs to be revitalized in Congress as further shoring up of our defenses. With this concentrated, widespread, and united drive for open access, I do have hope that we can survive the war.
Today marks the third anniversary of the effective date of the National Institutes of Health’s (NIH) public access policy. This policy requires “all investigators funded by the NIH submit … to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication.” Although deposit of works in PubMed Central and searches of the site have greatly increased (see graph at left) and sound arguments exist for promotion of public access to public-funded research, serious challenges, primarily in the form of proposed legislation, have been launched against the toddler policy. The first attack came in the fall of 2008 in the form of H.R.6845 (and later re-introduced as H.R. 801), entitled the “Fair Copyright in Research Works Act.” The bill, if enacted into law, would have effectively reversed the NIH policy by prohibiting any federal agency from imposing any condition, in connection with a funding agreement, that requires the transfer or license to or for a federal agency, or requires the absence or abandonment, of any of the exclusive rights of a copyright holder. The status of the NIH policy was solidified in March 2009 when President Obama signed into law the Consolidated Appropriations Act, which included a provision making the policy permanent. However, the assault upon the policy did not cease.
Days after the 2nd anniversary of the NIH policy, a bill was introduced (H.R. 5037) entitled the Federal Research Public Access Act. Had it been enacted, it would have required the 11 federal agencies that have outside research budgets of $100-million or more to adopt policies mandating timely public access to research they subsidize. Although not expressly held for the purpose of debating the bill, hearings in the summer of 2010 on the issue of public access to federally funded research revealed fierce opposition by publishers, notably the American Psychological Association, and the organization the Association of American Publishers to the mandate. In addition to the copyright argument raised previously, publishers strongly cautioned the economic impact suffered should open access be broadened. As reported in the Chronicle of Higher Education, the AAP argued “it is critical to distinguish between federally financed research and journal articles based on that research, which he described as partly the product of publishers’ labor. He repeated arguments often made by publishers about how their work enhances the value of research, and said that the 12-month embargo under the NIH policy is often not enough for publishers to recoup their investment.”
While the arguments promoting protection of publishers’ intellectual property and economic interests are meritorious, the arguments in favor of open and public access to scientific research continue to command greater heed. In a letter to lawmakers authored by several library organizations, the following compelling points in response to H.R. 801 were made regarding the need for open and public access to research:
- Broad public access allows scientists and researchers to collaborate with greater ease by allowing sharing of information, expedited discovery, and innovation.
- Public access policies ensure a permanent archive of research, which can be built upon by future scientists
- Public access promotes transparency and accountability
- Copyright law is not undermined under a public access policy because authors retain the ability to assign or transfer some or all of their exclusive rights to publishers or any other party of their choosing
Legislation that would expand the NIH policy, which has through the embargo and other terms taken into account these other interests, should be supported. The Right to Research Coalition has provided excellent resources to aid student proponents in voicing their support to certain members of the federal government, including the White House Office of Science and Technology Policy. For additional information and resources on the NIH policy and its potential, visit the Association of Research Libraries NIH Public Access Policy page.