Who Gets to See Published Research?

Opponents of a proposed bill say it would work against the open exchange of ideas

Mark Wilson, Getty Images

U.S. Rep. Darrell Issa is co-sponsor of the Research Works Act, which would prohibit federal agencies from requiring public access to journal articles, even if the research was supported by taxpayer dollars.
January 22, 2012

The battle over public access to federally financed research is heating up again. The basic question is this: When taxpayers help pay for scholarly research, should those taxpayers get to see the results in the form of free access to the resulting journal articles?

Actions in Washington this month highlight how far from settled the question is, even among publishers. A major trade group, the Association of American Publishers, has thrown its weight behind proposed new legislative limits on requiring public access, while several of its members, including the Massachusetts Institute of Technology's press, have publicly disagreed with that position.

The White House's Office of Science and Technology Policy just closed a period of public comment on public access to what it called "peer-reviewed scholarly publications resulting from federally funded research." The office hasn't set a timetable for what happens now, but its next moves could also determine whether federal mandates that govern public access have much of a future.

In Congress, meanwhile, U.S. Reps. Darrell E. Issa, a Republican of California, and Carolyn B. Maloney, a Democrat of New York, introduced the Research Works Act (HR 3699) last month. The bill would forbid federal agencies to do anything that would result in the sharing of privately published research—even if that research is done with the help of taxpayer dollars—unless the publisher of the work agrees first. That would spell the end of policies such as the National Institutes of Health's public-access mandate, which requires that the results of federally supported research be made publicly available via its PubMed Central database within 12 months of publication.

The publishers' association came out with a strong statement of support for the proposed legislation. Many commercial publishers of research journals, including major players such as Elsevier, belong to the group.

A number of university presses are members of the association's Professional and Scholarly Publishing division, including the presses of MIT, the University of California, and the University of Oxford.

The MIT Press was the first to say it didn't agree with the association's endorsement of the bill. Other academic presses, including California's, have said the same.

The Nature Publishing Group and Digital Science issued a joint statement last week saying that they do not support the Research Works Act. "We seek to enable the open exchange of ideas, especially in scientific communities, in line with the requirements and objectives of relevant stakeholders," the statement said, noting that the Nature group "encourages self-archiving of the author's accepted manuscript" in PubMed Central six months after publication.

The American Association for the Advancement of Science, which publishes the journal Science, also issued a statement saying it is not in favor of the bill. "We believe the current NIH public-access policy provides an important mechanism for ensuring that the public has access to biomedical research findings," said Alan I. Leshner, chief executive officer. "At the same time, the NIH policy provides appropriate support for the intellectual-property rights of publishers who have invested much in science communication."

Both the AAAS and the Nature group are members of the publishers' association.

More Than Words

The debate over mandates is not just administrative and legislative but also rhetorical. In this case, rhetoric does matter. What does "resulting from" federally financed research mean, exactly? Who gets to claim credit for—and control of—research products?

In a 19-page statement submitted to the Office of Science and Technology Policy, the publishers' association argued against the idea that the government should get to decide what happens to the results of research it helps support financially. "It has become necessary for publishers to pointedly remind the federal government that their 'peer-reviewed scholarly publications' that report, describe, explain, analyze, or comment on federally funded research do NOT 'result from' such research in any sense that can legally justify the assertion of federal government control over the contents or distribution of such publications," the group said.

In other words, a lot happens between the time the government shells out money for research and the time that research appears in published, analyzed, copy-edited, peer-reviewed form. Federal money provides the impetus, but publishers' investment of time and expertise creates the final product that everybody wants. That's the argument the publishers' association is pursuing, both in its comments to the White House and in its support for legislative action like the Research Works Act.

I had a long conversation on the topic with Allen Adler, vice president for government and legal affairs at the publishers' association. After a decade's worth of debates over public access, "it shouldn't be surprising to anyone that we come to the matter of government mandates with a jaundiced eye," he told me.

As his group sees it, mandates like the NIH's set up the federal government in competition with private-sector publishers. Because of such requirements, "the government becomes an alternative source of access" to the results of researchers' and publishers' hard work, Mr. Adler said.

He also took issue with critics who accuse the association of being anti-open-access. Some of its members already do some open-access publishing, he pointed out, and many have voluntary agreements in place with the NIH to deposit articles in PubMed Central. Why not build on those voluntary arrangements? he asked.

The association would not object, for instance, to mandates that would require researchers to make public their final progress reports, which recap a research project before the results are published.

That's not likely to satisfy many public-access advocates, however. Those reports are not peer reviewed, nor do they contain the analysis that articles prepared for publication do.

A Broader Debate

Whatever the executive branch decides to do about open-access mandates, it's not at all certain that the Research Works Act stands much chance of becoming law. In 2009, a similar bill, called the Fair Copyright in Research Works Act, failed to make it out of committee.

This is an election year, which makes it "a very difficult year to move any sort of legislation, let along legislation that has acquired a certain amount of controversy," Mr. Adler said. A lot of Congress's attention has been absorbed by higher-profile proposals, such as the widely unpopular Stop Online Piracy Act, or SOPA, and its Senate counterpart, the Protect IP Act, or PIPA. Those bills have created considerable resistance in the tech industry and among advocates of an open Web. Rep. Issa has been one of the legislators most vocally against SOPA.

Still, the introduction of the Research Works Act has public-access advocates on the alert, and it has once again exposed the persistent differences of opinion among scholarly publishers over federal mandates and how to approach the complex issues they present. University presses in particular are caught between wanting to take advantage of the resources of a big group like the Association of American Publishers, their own commitment to spreading scholarship widely, and the need to find a way to stay in business while honoring that commitment. 

 "The AAP's press release on the Research Works Act does not reflect the position of the MIT Press; nor, I imagine, the position of many other scholarly presses whose mission is centrally focused on broad dissemination," Ellen Faran, the press's director, said in a statement circulated on open-access electronic mailing lists. "We will not, however, withdraw from the AAP on this issue, as we value the association's work over all and the opportunity to participate as a member of the larger and diverse publishing community."

In addition to the MIT and California presses, the Pennsylvania State University Press and the Rockefeller University Press have also said they do not support the bill, or the association's position on it.

"The issues raised by Research Works Act are complex, and we welcome continued informed debate on this topic," the California press said in a statement that hinted at the delicate position some scholarly publishers feel they're in. "Our perspective on these issues differs from that of AAP, and we are committed to engaging closely with scholars from all disciplines in exploring new models that retain critical features such as quality control, long-term preservation, and measures of impact and use."

In a conversation with The Chronicle, Ms. Faran, of the MIT Press, said membership in the publishers' association gives her press a useful professional network to draw on, a point made by the other objectors as well. "Not to take advantage of the expertise and the resources would be foolish and ineffective," she said.

That doesn't mean every member press loves the positions the association takes, or even that it knows about them ahead of time. Ms. Faran said the group's statement supporting the Research Works Act took her by surprise.

Neglected Nuances

The MIT Press publishes about 30 scholarly journals, which account for about a quarter of its income, she said. The press allows authors to share pre- and post-print versions of articles from those journals, and the Research Works Act "is not congruent with our other open-access policies," she said.

That's only one reason she weighed in on the bill. "I also felt that the discussion that was going on was nowhere near nuanced enough," Ms. Faran explained. "It just was not recognizing the many complexities that are part of this."

The salvos traded over public access don't acknowledge "all the players in this complicated and interconnected world," she said. Mandates deal with access to research but not with how to pay for all the services that go into publishing it.

No one in scholarly publishing these days has enough money to do everything they want to do, Ms. Faran said. "People forget that a huge driver of this is the economy."

Many commercial publishers cite peer review as one essential ingredient they add to the publishing process. That claim rankles public-access advocates, who point out that most of the work involved in peer reviewing is done by scholars who volunteer their time.

Unlike some of her commercially oriented colleagues in the publishers' association, Ms. Faran is careful not to take credit for the scholarly labor behind the peer review involved in journal publishing. But, like Mr. Adler, she emphasizes the contributions that a publisher makes to research. They include selecting the best work for imprints, copy editing, "robust Web hosting," making research discoverable, and marketing and outreach. Those arguments also appear in the association's statement to the White House.

"We haven't figured out how to do all that and make it totally open," Ms. Faran said. "We feel that figuring out how to do that at a reasonable price is an important contribution that doesn't always get acknowledged."