Update - Does the "Research Works Act" work for you?

by Melanie T. Kowalski, Library Research Fellow, The Intellectual Property Rights Office

UPDATE: Since the original drafting of this post, several organizations and publishers have released statements against the Research Works Act (H.R. 3699):

• The University of California Press (an AAP member)
• Nature Publishing Group, Digital Science, and AAAS
• BioMed Central
• Springer

The Library of Congress is still netural on the bill. The bill itself is in consideration by the Committee on Oversight and Government Reform in the House.

Original Post:

The struggle in the academic publishing world between the Open Access movement and the private sector has intensified once again with the introduction of House Resolution 3699. The bill, known as the Research Works Act, was introduced to the House of Representatives on December 16, 2011 by Rep. Darrell Issa (R-CA), the Chairman of the Committee on Oversight and Government Reform, and Committee Member Rep. Carolyn Maloney (D-NY). The bill is intended to prohibit all federal mandates for public access to peer-reviewed scholarly work that originated from federally-funded research. In essence, the bill would eliminate the NIH Public Access Policy and prevent any future implementation of similar policies. The text of the bill states:
 

H.R. 3699 A BILL

To ensure the continued publication and integrity of peer-reviewed research works by the private sector.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the `Research Works Act'.

SEC. 2. LIMITATION ON FEDERAL AGENCY ACTION.
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.

SEC. 3. DEFINITIONS.
In this Act:
(1) AUTHOR- The term `author' means a person who writes a private-sector research work. Such term does not include an officer or employee of the United States Government acting in the regular course of his or her duties.
(2) NETWORK DISSEMINATION- The term `network dissemination' means distributing, making available, or otherwise offering or disseminating a private-sector research work through the Internet or by a closed, limited, or other digital or electronic network or arrangement.
(3) PRIVATE-SECTOR RESEARCH WORK- The term `private-sector research work' means 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.

According to an article by Rebecca J. Rosen of The Atlantic, this introduction by Rep. Issa comes as a particular shock given the Congressman’s staunch position against bills such as the Stop Online Piracy Act (SOPA).

To be expected, the publishing industry has welcomed the introduction of the bill. The Association of American Publishers issued a press release on December 23, 2011, praising the bill. The publishing industry views public access mandates as unfair and discriminatory since the publishing industry receives no governmental funding and must seemingly produce the product (a peer-reviewed scholarly article) at a financial loss. They argue the cost of peer-review administration, editing, and online publication cannot be recouped when the article produced is freely accessible in an open repository such as PubMed Central. Their primary argument against federal mandates for public access, and therefore in favor of H.R. 3699, is that such mandates would financially cripple the industry, putting at risk approximately 30,000 jobs in the U.S. 

In contrast, supporters of Open Access, Open Government, and Open Internet policies see the legislation as a step backwards from the public access/open access movement and a threat against the current NIH Public Access Policy.  Advocates against the bill, including many librarians (see MPublishing blog as an example), argue that publications originating from taxpayer dollars ought to be provided to the taxpayer free of charge.

The current NIH Public Access Policy makes NIH-funded research freely available online in PubMed Central within 12 months of publication, providing access to the public while protecting publisher subscription revenues.  This modest step toward open access has proven a huge boon to researchers and health practitioners and is essential to developing successful science policy, while leaving publisher profits quite healthy. In a blog post by UC Berkeley evolutionary biologist Michael Eisen, he questions whether the multiple campaign contributions from large commercial publishers Elsevier to Rep. Carolyn Maloney influenced the introduction of this legislation.  Whatever the impetus for introducing this legislation, the Alliance For Taxpayer Access issued a “call to action” on January 6, 2012, encouraging proponents of open public access to speak out against the legislation (contact information for representatives is included in the call to action).