Not entirely off-topic: The Research Works Act

On December 12, 2011, Rep. Darrell E. Issa (R-CA) and Rep. Carolyn B. Maloney (D-NY) co-sponsored a bill referred to the House Committee on Oversight and Government Reform called the Research Works Act (H.R. 3699). The official title of the bill as introduced is: “To ensure the continued publication and integrity of peer-reviewed research works by the private sector.”

The text of the bill—remarkably short as some bills go—sets forth a limitation on the action of the federal government, specifically, that “no Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that–

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work. (emphasis added)

The bill defines ‘private-sector research work’ (from Section 3: Definitions) as

an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research. (emphasis added)

According to this definition, once a publisher “adds value” to a research work (article) through publication, which it states also includes “peer review or editing,” that work becomes “private-sector” property to control as it sees fit, even if the research behind the published article was funded by a public-sector (federal government) agency grant. The definition does not claim that the research itself becomes private-sector property, only the published article.

The bill would limit the capacity of the federal government to require online (“network”) dissemination of said “value-added” articles from the author(s) of the research, his/her employer (e.g., college or university), or the publisher “without prior consent.” This proposed legislation appears to be in direct response to mandates from federal agencies such as the National Institutes of Health (NIH) that require all publicly funded research to be made publicly accessible. For example, the NIH Public Access Policy states:

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law. (emphasis added)

The point of conflict would seem to be the government mandate that research grantees submit “final, peer reviewed manuscripts” to an open access repository (PubMed Central in the case of NIH funding), while the peer review process is being claimed as a critical value-added contribution of the publisher. The legislation sides with publishers against public access to maintain the “integrity” of the peer review process. But there is more. Once you take out the bit about peer review, the legislation seeks “to ensure the continued publication of research works by the private sector.” In other words, this legislation is aimed at limiting the government’s capacity to threaten a well-established, and up to now, very profitable academic publishing business model.

I can certainly understand public-sector academic publishers being unhappy with a government mandate that requires them to make the published results of publically-funded research freely and openly accessible. They are after all in the business of selling journal subscriptions and pay-for-view articles, not giving stuff away. The Association of American Publishers, which includes many academic publishers, has recently come out in vociferous support of the Research Works Act precisely along these lines. (Note: Not all members support the position taken by the AAP. You can follow this story, including reports of AAP member defections on Richard Poynder’s blog Open and Shut?) On AAP’s website we read:

The [Research Works Act] is aimed at preventing regulatory interference with private-sector research publishers in the production, peer review and publication of scientific, medical, technical, humanities, legal and scholarly journal articles. This sector represents over 1.3 million articles published annually which report on, analyze and interpret original research; more than 30,000 U.S. workers; and millions of dollars invested by publishers in staff, editorial, technological, capital and operational funding of independent peer review by specialized experts. North American-based science journal publishers alone account for 45% of all peer-reviewed papers published annually for researchers worldwide.

“The professional and scholarly publishing community thanks Representatives Issa and Maloney for supporting their significant investments that fund innovations and enable the essential peer-review process maintaining the high standards of U.S. scientific research,” said Tom Allen, President and CEO, Association of American Publishers. (emphasis added)

But wait a minute. Although, as Michael Eisen, co-founder of the Public Library of Science (an open access publisher) acknowledges in a January 10, 2012 New York Times op-ed piece that journals manage the peer review process,

it is carried out almost entirely by researchers who volunteer their time. Scientists are expected to participate in peer review as part of their employment, and thus the publicly funded salaries most of them draw through universities or research organizations are yet another way in which taxpayers already subsidize the publishing process. (emphasis added)

The so-called “integrity” in peer review that this legislation claims private-sector publishers are contributing as a “value-add” is actually a service provided at no cost by scholars/researchers. It is this unpaid labor that lends credibility to an academic journal, and profits (in some cases, enormous profits) to commercial publishers. So again, if we strip out the peer review bit, this legislation is really about maintaining a long-standing business model of publishers. We might ask: Is it only government interference that commercial publishers are concerned about, or are they also seeking government protection against a fearful disruption by new attitudes and approaches in scholarly communication? Michael Eisen (continuing in his New York Times piece) contends that the scholarly community shouldn’t wait for Congress to do the right thing by rejecting this bill.

For too long scientists, libraries and research institutions have supported the publishing status quo out of a combination of tradition and convenience. But the latest effort to overturn the N.I.H.’s public access policy should dispel any remaining illusions that commercial publishers are serving the interests of the scientific community and public.

Researchers should cut off commercial journals’ supply of papers by publishing exclusively in one of the many “open-access” journals that are perfectly capable of managing peer review (like those published by the Public Library of Science, which I co-founded). Libraries should cut off their supply of money by canceling subscriptions. And most important, the N.I.H., universities and other public and private agencies that sponsor academic research should make it clear that fulfilling their mission requires that their researchers’ scholarly output be freely available to the public at the moment of publication.

Does this have anything to do with scholarly communication in religion and theology?

Eisen’s challenge and encouragement to his colleagues in the sciences is the turn that brings me back to my claim at the top that this post is not entirely off-topic. It is surely true that scholars, libraries, and theological and religious academic institutions “have [also] supported the publishing status quo out of a combination of tradition and convenience.” Although our relationship with journal publishers in religion and theology is frequently positive, especially among the smaller commercial and society publishers, it is also true that librarians have been feeling an increasing budget squeeze, even as we have witnessed (and lamented) numbers of our journals turn their operations over to large commercial publishers. When profit is clearly the motive, we might arguably inquire into a more basic kind of “integrity” and ask whether supporting the status quo any longer fits into our scholarly mission.

Admittedly, inertia is a powerful force, and it takes a fair amount of courage to cancel long-standing journal subscriptions as an act of protest. But as to encouragement, I concur with Eisen that we are “perfectly capable of managing peer review.” We have the expertise, and we have an engaged community of competent scholars with whom we can work. What we need is to come together to support and develop new instruments of scholarly communication. With Eisen, my vote is for open access.

Posted in Commercial Publishing, Economics & Business Models, Open Access, Peer Review

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