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A Case of Open and Shut

Since its introduction in October of last year, the Stop Online Piracy Act (SOPA) has captured immense attention from legislators, online business proprietors, copyright experts, and privacy proponents. From the intense exchanges of opinion both on Capitol Hill and among non-politicos, an unlikely champion has arisen in Republican Congressman Darrell Issa. Promoting citizen participation in the legislative process, Issa launched a web site, based upon a theory of crowdsourcing, for the public editing of a bill called the OPEN Act (Online Protection & ENforcement of Digital Trade Act). The bill advocates approaching the piracy problem through international trade law and not through local law enforcement measures.

However, while publicly standing as  for open government through citizen participation and an open internet economy, Issa quietly took a step last month to shut the doors on access to government-funded research. Entitled the “Research Works Act,” the Issa-sponsored bill, a poorly repackaged version of the failed “Fair Copyright in Research Works Act,” would, if enacted, prohibit all federal agencies from adopting, implementing, maintaining, or continuing any policy or program that provides for the online and public dissemination of commercially published and peer-reviewed research without the publisher’s consent. The effect of the bill would be the termination of the NIH public access policy and the foreclosure upon the idea of broadening the scope of that policy’s application.

Not surprisingly, although disturbingly, the Association of American Publishers (AAP) issued a press release applauding the bill. AAP President Tom Allen is quoted as stating “America’s [Professional and Scholarly Division] publishers are making more research information available to more people, through more channels, than ever before in our history. At a time when job retention, U.S. exports, scholarly excellence, scientific integrity and digital copyright protection are all priorities, the Research Works Act ensures the sustainability of this industry.”  The release further asserts: “Journal articles are widely available in major academic centers, public libraries, universities, interlibrary loan programs and online databases. Many academic, professional and business organizations provide staffs and members with access to such content.”

The AAP’s statements are factually misleading. The academic entities referenced cannot afford to provide access to the large body of research that is available exclusively through commercial publishers; it is no secret that libraries and other institutions have had to make difficult budgetary decisions about maintaining subscriptions to these publishers’ publications and databases. Further, authors and researchers do not publish in AAP’s members’ journals for monetary gain and often give up all of their own intellectual property rights in exchange for publication. As a result, access by the author’s employing institution and its students is often also bargained away. Further, the AAP’s stance ignores the fact that additional publishable works, for which they can recover subscription fees, are produced as a result of the increased discoverability and collaborations that occur when there is public access to research, particularly in places where there is no possibility of access except through public channels. There is no evidence that policies such as that of the NIH have economically hurt publishers to such a degree as to outweigh the benefits realized through open and public access to scientific research.

Issa, in a statement posted on his OPEN Act web site, proclaims that Americans have the right to benefit from their own creation. Shouldn’t the American public, then, have the right to benefit from the research that they have funded? Without the tax dollars paid by Americans, there would be no funding for federal research, and without federally funded research, publishers would suffer a sharp decline in publishable material that their readers want and need to read.  Apparently Issa wants to be the American public’s doorman, determining when and for whom the door may be open and shut.

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