News flash — it’s hard to get the federal government to enact laws that radically change the amount of control authors have over their work, even when that work is based on research that was undertaken at taxpayer expense.
One reason it’s hard is that the legislative branch of the federal government is not exactly a lean and efficient law-making machine; in fact, some argue that it was deliberately organized in such a way as to make the creation of new laws difficult and time-consuming.
But another reason is that intellectual property is a complex and deeply fraught policy issue. Not everyone wants to acknowledge this, of course. The language used by both proponents and opponents of recently proposed legislation like the Federal Research Public Access Act (FRPAA) and the Research Works Act (RWA) is crafted to convince the public that only a fool or a villain would disagree that the initiative in question is clearly and simply the [worst/best] idea ever, one that will [create/solve] fundamental problems for scholarship and will usher in [The Great Day/Armageddon] for the taxpaying public and the scholarly community.
For better or worse, both FRPAA and RWA have so far failed to make it past the rocky shoals of congressional approval.
Now comes another public-access bill, and another opportunity for those on both sides of the divide to call for all intelligent people of good will to do the clearly moral thing and [oppose/support] it.
The Fair Access to Science and Technology Research Act (FASTR, which, whatever the bill’s merits, you have to admit is a brilliant acronym) was introduced in both houses of Congress on February 14 by a bipartisan team of sponsors. FASTR would require federal agencies that fund $100 million or more of extramural research each year to ensure that funded authors’ final peer-reviewed manuscripts are made publicly available within six months of publication. Furthermore, the articles are to be made available to the public “in formats and under terms that enable productive reuse, including computational analysis by state-of-the-art technologies.”
If FASTR simply called for final manuscripts to be made promptly available for reading and download by the taxpaying public, the bill would be less controversial. There would certainly be disagreement, and even if the bill were adopted, there would surely be negotiation around the acceptable length of embargo — but such disagreement and negotiation are normal. What makes FASTR more difficult is its provision that articles be made available for “productive reuse, including computational analysis by state-of-the-art technologies” — in other words, text-mining and other (unnamed and as yet undeveloped) methods of large-scale automated text processing.
On the one hand, this seems like a pretty reasonable position. Consider HathiTrust, a massive database of (mostly) in-copyright books digitized and made available online for searching by the general public. The books that are in copyright can’t be read by the public (not even in Amazon-style snippets), but they can be searched, and the searcher can see how target words and phrases are distributed within and across the books in the database. Such access provides real value to researchers without posing a threat to whatever market may exist for these books. The HathiTrust project has not been without controversy, but few would argue that its text-mining capability puts the publishing industry at any risk.
On the other hand, “computational analysis by state-of-the-art technologies” is a very broad and ambiguous concept. Publishers are being neither stupid nor venal in raising concerns about it. Today’s “cutting-edge analysis tool” may pose no threat at all to a publisher’s ongoing viability, while tomorrow’s may drive it out of business entirely. Simply putting the word “fair” into the name of a bill does nothing to ensure its fairness, particularly when the language of its mandate is so open-ended as to contemplate all future mechanisms for exploitation of text.
The Association of American Publishers (AAP), predictably enough, characterizes FASTR as a “different name” for the “same boondoggle” (as FRPAA), calling the proposal “unnecessary and a waste of federal resources.” Equally predictable is the response by the Association of College & Research Libraries, whose president expressed his pleasure at the bill’s introduction and emphasized the importance in particular of its provisions for “greater reuse through open licensing.”
Rights and Consequences
Once again, these dueling perspectives all boil down to the same old question: What do taxpayers buy when they fund research? Historically, they have underwritten the research itself, and then paid separately for access to edited, peer-reviewed, and published reports of the research. Rhetoric that fails to account for the real and expensive gap that exists between the end of a research project and the creation of a publishable final product is irresponsible.
But it’s also true that much of the work done to bridge the gap between project and article is performed by people who are themselves paid by taxpayer funds. Nor is it obviously unreasonable to argue that the taxpaying public ought to have some kind of enhanced access to articles based on taxpayer-funded projects. What’s difficult is determining what constitutes a “fair” arrangement — the word “fair” always needing to be put in scare quotes, since it has no objective meaning here.
More importantly, the law of unintended consequences applies more forcefully to legislation than to almost any other public endeavor — and the prospect of a world in which scholarly publishers can no longer make money by providing publishing services is one that should give us pause. Real-world consequences, not intentions, are what will shape the future scholarly environment.
A Strange Exclusion
Interestingly, explicitly excluded from FASTR’s requirements would be “authors who do not submit their work to a journal” and “works that are rejected by journals.” This exclusion is very puzzling to me. If the purpose of FASTR is to make results of taxpayer-funded research accessible to taxpayers, why does it apply only to those reports that have been accepted for formal publication? FASTR is written as if its sponsors believe that taxpayers only deserve access to articles that have benefited from the added-value services of third-party publishers. If FASTR is enacted as written, authors will have the option of keeping the results of their taxpayer-funded research a secret. Why? What public good is served by that exclusion?
At this point, one thing is certain: library organizations will celebrate the introduction of FASTR, publishing groups will decry it, dispassionate analysis will be very hard to come by, and FASTR’s fate will ultimately be determined by legislators who know little about the complicated realities of the scholarly publishing economy and who will be lobbied hard by people on both sides of the issue who have no interest in communicating that complexity to the decision-makers.