[A2k] arstechnica: detailed and accurate piece on last week hearing on Open Access to publicly funded research

[Manon Ress]

Congress's copyright fight puts open access science in peril
http://arstechnica.com/articles/culture/open-access-science.ars

By John Timmer | Published: September 16, 2008 - 12:55PM CT

Backlash against open access

In recent years, scientific publishing has changed profoundly as the
Internet simplified access to the scientific journals that once
required a trip to a university library. That ease of access has
caused many to question why commercial publishers are able to dictate
the terms by which publicly funded research is made available to the
public that paid for it.

Open access proponents won a big victory when Congress voted to compel
the National Institutes of Health to set a policy of hosting copies of
the text of all publications produced by research it funds, a policy
that has taken effect this year. Now, it appears that the publishing
industry may be trying to get Congress to introduce legislation that
will reverse its earlier decision under the guise of strengthening
copyright protections.

Under existing law, the products of federally funded research belong
to the scientists that perform it and institutions that host them.
Academic journals have traditionally had researchers transfer the
copyright of publications resulting from this research to the
journals. The current NIH policy requires that authors they fund
reserve the right to place the text and images of their publication in
an NIH database hosted at PubMed Central (PMC).

To protect commercial publishers, papers submitted to PMC are not made
accessible until a year after publication, and are not required to
include the formatting and integration of images performed by the
publisher. This one-year limit is shorter than that required by other
governments and private funding bodies such as the Howard Hughes
Medical Institute and the Wellcome Trust. Many publishers have
embraced this policy, and allow the fully formatted paper to be made
available, sometimes after a shorter embargo.
Open Access meets resistance

Not all publishers have embraced it, however, and some have tried to
exact exorbitant fees for allowing manuscripts to be transferred to
PMC. Others have engaged in aggressive lobbying against open access
efforts.

John Conyers (D-MI) introduced HR 6845

Those efforts may be paying off. The House of Representatives has seen
the introduction of legislation, HR 6845 that, depending on its final
format, may significantly curtail or eliminate the NIH's ability to
continue its open access policy. The current bill would prevent any
arm of the federal government from making research funding contingent
upon "the transfer or license to or for a Federal agency of... any
right provided under paragraph (1) or (2) of section 106 in an
extrinsic work, to the extent that, solely for purposes of this
subsection, such right involves the availability to the public of that
work." Those Section 106 rights include the reproduction of the work.

Although that would seem to rule out the existing NIH policy, there is
a certain amount of legal wiggle room there. For example, the NIH
could fund a private entity to maintain PMC, and thus have the right
to reproduction transferred to an independent entity. Nevertheless,
the bill would appear to directly target the prior legislation that
put the NIH in the business of mandating public access in the first
place.
The Intellectual Property Subcommittee comes up to speed

Last week, the Judiciary Committee's Subcommittee on Courts, the
Internet, and Intellectual Property held a hearing on the proposed
legislation. If anyone was thinking that policies related to publicly
funded scientific research were free of politicking and rampant self-
interest so frequently involved in the copyright and intellectual
property battles, the hearings would have erased them. Legislators
questioned whether it made sense to mandate the transfer of copyrights
at a time when the US government was pushing for other governments to
respect those rights. At one point, hearing chair Howard Berman (D-CA)
noted that the N in NIH shouldn't stand for Napster.

Howard Berman (D-CA) chaired the hearings

It also became apparent that there was a bit of a turf battle going
on. The Intellectual Property Subcommittee clearly felt that it had
been ignored during the original passage of the bill that compelled
the NIH's open access policy, and several members expressed
displeasure at having been bypassed, and suggested the bill was useful
simply for allowing them to have a voice on the matter.

That said, many of the representatives were clearly in need of a
primer in academic publishing. Different members of the Subcommittee
expressed surprise at various aspects of the current system, such as
the fact that peer reviewers perform the function free (although, as
noted, the process of arranging for peer review can be expensive).
Also eliciting surprise was the revelation that authors are not paid
by publishers for the transfer of copyright.

In fact, many publishers charge money for the publication of
scientific research, even those that obtain copyright to the work in
the process. Dr. Elias Zerhouni, director of the NIH, shocked Berman
when he mentioned that the NIH hands out $100 million a year to grant
recipients specifically to cover the cost of publishing their results.
It would certainly have been possible for those testifying in favor of
the open access policy to argue that the public pays part of the cost
of nearly every stage of the publishing process, and might expect to
have some access to the end product.


Public good or publishing apocalypse?

For the most part, however, the witnesses in favor of open access
declined to make arguments based simply on the fact that the public
had paid for the work. Zerhouni spent much of his time emphasizing how
PMC represented the next step in medical research databases. Earlier
information repositories were discontiguous and fragmentary; now,
researchers can use a single web interface to hop among data sources,
instantly moving from the genome to protein structures. Without the
bodies of papers, researchers will be inhibited by the lack of
information, and data-mining efforts will necessarily be limited.

The NIH's Elias Zerhouni strongly supports open access

Zerhouni also presented the NIH policy as a carefully considered
balancing act. The year-long delay before the release of the papers
and lack of full press formatting will necessarily make PMC an
alternative of last resort for most researchers. That point was echoed
by Heather Dalterio Joseph, who represented a number of groups,
including an association of research libraries, which favored open
access. Joseph discussed the results of surveys that indicated almost
no librarians would cancel subscriptions to journals as a result of
the NIH program, simply because their users don't find waiting a year
for access to a paper. She also pointed out that many journals also
publish work that would not going to appear in PMC because it wasn't
the result of federal funding, making a subscription the only way to
get at that information.

Joseph also added the only personal appeal during the proceedings when
she spoke about her son's diabetes diagnosis. She testified that the
event solidified her desire to see everyone=97parents, doctors, medical
researchers=97have access to the research on conditions such as diabetes.

The witnesses testifying against the open access policy were a bit of
a mixed bag. Dr. Martin Frank is the executive director of the
American Physiological Society, which publishes about a dozen academic
journals. Those journals make their papers open access after 12
months, and agreed to do so in advance of the NIH policy, simply
because the APS' membership demanded it. Although this appeared to be
working for the APS, he felt that the NIH's policy eliminated the
group's ability to change its policy if it ever started becoming
problematic.

Dr. Frank also pointed out that some fields that receive NIH support
move more slowly than biomedical research, and so the one-year delay
on release isn't a one-size-fits-all solution when it comes to
protecting publishers' value. He also came armed with his own survey
results that suggested the number of subscriptions would drop
significantly as a result of the open access policy; the difference
with the earlier surveys presumably being the product of how questions
were phrased. His take-home is that peer review and publishing costs
money, and the open access policy makes it harder for journals to earn
that money, and some will undoubtedly go out of business as a result.

If Frank was putting an aggressive spin on a reasonable position,
George Washington University Law professor Ralph Oman pushed it so
aggressively that it appeared absurd. The NIH policy, in his
presentation, "will destroy the commercial market" and leave science
without a peer-review system. When asked if the NIH could manage peer
reviewing, something it already does with grants, Oman had a
reasonable answer=97not without increasing its budget to cover the cost=97
but buried it in rhetoric about "a healthy distrust for the hairy
snout of government," and his "great confidence in the private
sector." Apparently, he does not own stock in Shearson Lehman or AIG.

Business or policy

Still, at least a few of the Representatives appeared to have caught
on to the key issues. Rep. Bob Goodlatte (R-VA) asked Oman whether the
NIH's policy was simply a matter of using "previous liens" that have
long been used in contracts that involved copyrights. Oman managed to
admit that, "under a technical reading of the copyright law, that
would be true," before launching into a diatribe on an unrelated
topic. Rep. Zoe Lofgren of California (D) accordingly concluded, "this
isn't about copyright at all; it's about science policy."

Realistically, it's a bit of both. Government policy, primarily in the
form of Congressional action, has set the policy for what can be done
with the results of publicly-funded research. In general, those
results have either stayed in the lab or been left for others to
commercialize, but nearly every aspect of that has been a bit
contentious, from demands for the release of bacterial strains to the
calls for the reform of the system that universities have used to
grant biotech patents. The public consistently wants to see more
access to the fruits of its tax dollars, even though it's never quite
clear that it will be able to do anything with that access.

Although open access to publications is a symptom of that tension,
layered on top of it is a bit of confusion caused by changes to the
publishing economy brought by the Internet. By easing access and
setting a model where most content is available without cost to the
readers, the web is changing the business model for all of publishing,
academic and otherwise; the open access movement existed well in
advance of the NIH policy. If some scientific journals go out of
business, they'd join a large list of other print publications that
met that fate in fields where the NIH does not set policy.

Currently, the disruptions wrought by the Internet and expectations of
open access are too new for a viable alternative to traditional
publishing to have emerged. But it doesn't appear that the NIH policy
is making a significant contribution to that disruption, and the
benefits of the policy appear likely to be significant. If Congress
rolls back that policy in response to disagreements with other
countries over film piracy, then it could really be throwing the baby
out with the bathwater.


***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673