Open Access News

News from the open access movement

Friday, September 12, 2008

More on the publishing lobby's rejection of compromise

Jennifer Howard, Congressional Hearing Over Public Access Filled With High Drama, Chronicle of Higher Education, September 12, 2008 (accessible only to subscribers). Excerpt:

A life-and-death battle is going on over public access to federally financed research —life for taxpayers and many scientists, and death for publishers. Or so each side claims....

Elias A. Zerhouni, director of the NIH, led off with a passionate case for PubMed [Central] as "a vital component of 21st-century science." He presented a timeline of breakthroughs related to the Human Genome Project to demonstrate what he called "a true explosion in scientific discovery," one accelerated by researchers' access to unprecedented amounts of data.

The NIH's public-access policy, Dr. Zerhouni argued, helps speed up the pace of discovery by making knowledge widely available. "We fully believe it is consistent with copyright law," he said. He also pointed out that the NIH policy allows for an embargo twice as long as the standard period in Canada, Australia, and parts of Europe.

Heather D. Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition, or Sparc, expressed "serious reservations" about the legislation. Ms. Joseph's group speaks for many research libraries, which have been stalwart supporters of public access. Undoing the NIH policy, she said, would limit taxpayers' access to "crucial, health-related information that can make a life-or-death difference in the lives of the American public." ...

Yet Ralph Oman, a copyright lawyer who lectures in intellectual-property law at George Washington University Law School, made the case to the committee that "a mandatory federal policy requiring these works to be made available for worldwide distribution is in inherent conflict with copyright" and would threaten publishers' continued existence....

Both the Association of American Publishers and the Association of American University Presses issued strong statements of support for the bill.

So did Martin Frank, executive director of the American Physiological Society, which publishes scientific journals. He repeated the publishers' mantra that they make "a significant value-added contribution" to the research they publish, even if the NIH pays for it. "Articles should not be taken from those of us responsible for their creation," he told the subcommittee.

One group was not well represented in yesterday's wrangling: the scientists who actually do the research being fought over, as a subcommittee member, Zoe Lofgren, Democrat of California, noted. Most of these researchers sign their copyrights over to their publishers as a condition of being published. One glimmer of how some of them feel came in an open letter to Congress submitted by 33 Nobel Prize winners in chemistry, physiology, and medicine.

"The current move by the publishers is wrong," the laureates wrote. "The NIH came through with an enlightened policy that serves the best interest of science, the scientists who practice it, the students who read about it, and the taxpayers who pay for it." ...


  • I've already commented at length, twice (Sept 5 and Sept 11), on publisher claims for the new bill and I won't repeat those comments here.  But here's a comment on Martin Frank's assertion that "Articles should not be taken from those of us responsible for their creation."  (I don't have a transcript or the full context, just this quotation from the CHE story.)
  • The claim is breathtakingly one-sided.  Of course publishers have a role in the creation of published research articles.  But who else has a role?  How about the researchers who did the research and wrote the articles?  How about the public funding agency which paid for the research and the taxpayers who stand behind the funding agency? 
  • There are two things wrong with Frank's claim.  First, it assumes that publishers are the only parties responsible for the creation of research articles.  Second, it assumes that the NIH policy "takes" those articles from publishers.  On the second of these, see my comments yesterday on the increasingly common but false publisher claim that the NIH policy forces them to "surrender" their articles.  But here's a bit more on the first assumption.
  • I acknowledge that publishers add value.  For example, here:  "Speaking for myself, I've never denied that journals add value. To me the question is not whether a journal adds value but how to pay for the most essential kinds of added value without creating access barriers for readers."  But do publishers acknowledge that authors and funders add value?  If not, let them say that in public.  But if so, then they must accept the need for compromise among value-adders and drop the self-serving demand that all their interests be served first and that all other stakeholders, including taxpayers, should make do with what is left.
  • Here's how I put the argument in an article from August 2007:
    Publishers like to say that they add value by facilitating peer review by expert volunteers. This is accurate but one-sided. What they leave out is that the funding agency adds value as well, and that the cost of a research project is often thousands of times greater than the cost of publication. If adding value gives one a claim to control access to the result, then at least two stakeholder organizations have that claim, and one of them has a much weightier claim than the publisher. But if publishers and taxpayers both make a contribution to the value of peer-reviewed articles arising from publicly-funded research, then the right question is not which side to favor, without compromise, but which compromise to favor. So far I haven't heard a better solution than a period of exclusivity for the publisher followed by free online access for the public. This compromise-by-time is buttressed by a second compromise-by-version: publishers retain control over the published edition for the life of copyright while the public receives OA to the peer-reviewed but unedited author manuscript. Publishers who want to block OA mandates per se, rather than just negotiate the embargo period, are saying that there should be no compromise, that the public should get nothing for its investment, and that publishers should control access to research conducted by others, written up by others, and funded by taxpayers.
  • Elias Zerhouni was completely right to say in the hearing that "the NIH policy allows for an embargo twice as long as the standard period in Canada, Australia, and parts of Europe."  The NIH policy is already a compromise and one that gives publishers more than any other OA mandate from a medical research funder.  Apart from the NIH, here's a complete list of the medical research funding agencies worldwide with OA mandates, public and private.  Every single one uses an embargo of six months, instead of the NIH's 12:  the Arthritis Research Campaign (UK), British Heart Foundation, Canadian Breast Cancer Research Alliance, Canadian Institutes of Health Research, European Research Council, Cancer Research UK, Chief Scientist Office of the Scottish Executive Health Department, Department of Health (UK), Fund to Promote Scientific Research (Austria), Genome Canada, Howard Hughes Medical Institute, Joint Information Systems Committee (UK), and the Wellcome Trust (UK).
  • Why do all these medical funders choose six month embargoes instead of 12?  Nobody has combed through their policy documents and juxtaposed their statements of rationale.  But I suspect the answer is this:  (1) Any delay in public access to publicly-funded research is a compromise with the public interest, (2) delays are more harmful in medicine than in any other field, and (3) medical funding agencies are dedicated to the public interest in advancing research, health, and healthcare.  But if that's true, then why do they allow any embargo at all rather than require immediate OA?  Roughly for the reasons publishers have been citing.  Publisher interests are already built into these policies, and have already been weighed and valued. 

Update.  Here's an OA version of the article.