[tt] backlash against open access

[Eugen Leitl]

http://arstechnica.com/articles/culture/open-access-science.ars/1

Congress's copyright fight puts open access science in peril

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—parents, doctors, medical
researchers—have 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—not without increasing its budget to
cover the cost—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.