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.
36 Thoughts on "It's FASTR — Is It Bettr?"
I am reminded of the blind man and the elephant. What is the point of providing access to some research if the reader cannot follow all the citations? I estimate the US government pays for 15 to 20% of all academic R&D. FASTR would exclude its readers from the majority of publications — not to mention all previous publications.
A better solution would be to include major research libraries in science policy and budgets. Fund them properly and provide general access to the literature via the libraries.
Who is paying the other 80%? My impression is that most basic research, which is what gets published, is federally funded, especially in the physical sciences. Medicine may be different.
Albert notes: “What is the point of providing access to some research if the reader cannot follow all the citations?” So, using this logic, this would completely stop the entire publishing industry because it has always been true that not everyone can follow the entire citation chain to read everything that is ever cited, OA or not. Open Access is not an all or nothing proposition. More OA (or public access in this case) is better than having less access and less CC-BY use rights.
Actually, Joe, one of the things complicating the conversation about OA is the fact that, for many on the evangelical end of the OA-advocacy spectrum, OA is in fact an all-or-nothing proposition. Check out the Berlin and Bethesda declarations—these make it clear that, to many OA advocates, it’s about much more than just access to content. It’s about getting rid of the exclusive rights that have traditionally accrued to copyright holders. There are many who believe (and preach) that OA without CC-BY is not OA at all.
Yes, it is true that there are some OA advocates who believe that OA without CC-BY is not OA at all. I am not sure how that relates to my response to the statement made by Albert who essentially says that publishers should not work towards greater OA because not everyone can follow all of the citations in the references of the articles. These are two different statements. I would like to see greater OA with CC-BY licenses, but we can have intermediate steps in the path to more OA. It is ok to have some OA with much of that research CC-BY. It does not have to be all or nothing.
I was just responding to your statement that “OA is not an all-or-nothing proposition.” The controversy around that issue is a big part of what’s making OA such a difficult topic of conversation right now. If we could get the more hardcore advocates to agree with your statement, I think it would be easier to make progress on optimizing access to scholarship.
Thanks Rick. One of the hardest core OA advocates I know is Peter Suber, and he wrote on page 73 in his Open Access book, “I’ve argued that it’s unfair to criticize the OA movement for disparaging gratis OA (merely on the grounds that its public statements call for libre) or neglecting libre OA (merely on the ground that most of its success stories are gratis)…. Demanding libre or nothing where libre is currently unobtainable makes the perfect the enemy of the good.” (http://bit.ly/XnfkTm to Google books) Yes, let us work towards the good.
When you talk about “taxpayers,” you go down a slippery slope. If the US taxpayers fund research, does that mean citizens of other countries can see it for free? Giving away to foreigners what we paid for???!!! With the increasing pressure on governments to squeeze every dollar, this situation is not that far fetched. (How one would implement such a deal, hurts my head!)
Ken, you argument really isn’t valid. Many, perhaps the majority, of commercial publishers are not even based in the US and obtain copyright the the manuscript as a condition of publication.
But many, if not the majority, of commercial publishers have US offices, employ US citizens and pay US taxes (and some have entities incorporated in the US for business and tax purposes). When we talk about the “taxpayer”, we should recognize that publishers are included in this group.
There are also many publishers who, at least for journals, rely on a license to publish and leave copyright with the author.
So it should be a requirement to have an US office and hire x number of US citizens for a publisher be able to publish a manuscript funded by the US government? Likewise should the Dutch or British governments pose similar requirements on US publishers for their research?
In my view it is a silly and terribly counterproductive to turn this into a nationalistic issue unless you are willing to have other countries do the same thing and have all of scientific research pay the price. You can be for or against FASTR but don’t do it on this basis.
I simply used the example above to show that argument makes no sense.
The argument makes provincial sense, which is the risk inherent in it. Taxpayers in the UK are already asking whether the UK should be providing free materials to the rest of the world — what advantage do they (taxpayers) gain from this? To them, it seems like all they’re going to see are higher taxes (because research budgets are going to have to expand to pay for APCs, and because publishers will be paying less in taxes as their incomes fall).
Politics isn’t always rational or idealistic. It’s often about who can promise a chicken in every pot. If you’re asking taxpayers to pay higher taxes so the rest of the world can take what they’ve paid for without remuneration, there’s a political risk in that. It’s healthy to recognize this, because ignoring it only increases the risk.
That wasn’t really my point. I was just noting that we’re presented with this battle between benefiting the “taxpayers” against the evil publishers, when in truth the publishers and their employees are “taxpayers” as well.
I think the nationalistic argument stems from a reductio ad absurdum argument, taking the reasoning for FASTR (the US taxpayer paid for the research, therefore they own it) to it’s extreme. An interesting exercise in logic, but not terribly helpful in practice.
To best understand one’s choices though, one should probably ask these sorts of questions, and it’s all about finding the right balance in the end. Is it in a government’s best interests to dismantle an industry that employs citizens and contributes to the nation’s wealth and tax coffers? Will the societal and economic benefits of OA outweigh this loss? Is it in a government’s best interests to pay for the raw materials for companies to develop in other countries (the example I used was the UK government paying an additional $500 per paper to get a CC-BY license which is then used to build a textmining company in Silicon Valley that sells their product back to UK researchers for further funds)? More on this here: http://scholarlykitchen.sspnet.org/2013/02/12/licensing-controversy-balancing-author-rights-with-societal-good/
Good discussion. As I pointed out, a lot of complications arise when taxpayers claim some new kind of “ownership” of research. It’s unrealistic to think a new distribution concept devised by politicians will be more effective than one which has evolved and adjusted over the years.
I assumed that “computational analysis by state-of-the-art technologies” referred to data sets accompanying (or included within) the articles in question and not the actual text of the articles themselves.
Not according to SPARC (which I assume, but do not know for certain, had a hand in crafting this bill). Here’s a pull quote from the statement by Heather Joseph, SPARC’s exec director:
This is a crucial step. As the volume of research information increases, with a mind-boggling 1.5 million research articles published each year, no person can realistically hope to make full sense of this information by simply accessing and reading individual articles on their own. We must enable computers as a new category of reader to help power through this volume, thousands of articles at a time, and to highlight patterns, links, and associations that would otherwise go undiscovered. Computational tools like text mining and data mining are crucial to achieving this, and have the potential to revolutionize the research process.”
Right Rich, they are talking about machine reading and semantic analysis. NLM does a lot of researchin this area as does DARPA. I do a little. Data is a different issue.
I think it’s also important to realize that copyright does not prevent a great deal of textmining and machine reading. It’s when the companies doing the analysis want to re-sell and/or redistribute the copyrighted material that the CC-BY license comes into play. For example, Google can crawl and index websites which are copyrighted and provide ranked search results, but cannot provide or sell the full text of the websites.
FRPAA died with the last Congress so FASTR is indeed its successor. A strong industry response is once again required, eternal vigilance and all that. I think the complexity of the issues favors the industry, pesky stuff like copyrights and income. The 6 month embargo period is especially dangerous.
“The 6 month embargo period is especially dangerous.” Is it? Do we know that?
I’m not trying to be argumentative; I’m interested in what data journals/publishers have to determine this. I remember a presentation from an editor for a small society journal in bio-med (I wish I remembered which one) who had looked at the range of revenue streams for the journal and determined that revenues dropped off the table after two months.
I’m sure it’s different for each journal, and certainly different across disciplines. It would be useful to the discussion Rick raises to have this data.
ALPSP did a large study of this last year, which we covered here:
The title says it all.
Here is a crude model. Surely a one month embargo would kill most subscriptions, say 95%. A 12 month kills say 5%. Plot these two values on a time scale and draw a straight line between them. A six month embargo knocks off just under half of the subscriptions, decimating the industry. Maybe the real function is not a straight line but I see no reason to think it is very different. Changing the endpoints a little also makes little difference.
So unless there is some magical psychological nonlinearity out there a six month embargo is playing Russian roulette with the industry.
FASTER sponsor Zoe Lofgren has a press release here.
It has the usual OA rhetoric and unsubstantiated claims. At the end it even cites OSTP but OSTP has never suggested a 6 month embargo period. I suspect a lot of this is coming from PMC.
While we are repeating old arguments I must point out that the federal government already has a way to make all its funded research results publicly available without hijacking subscription journals, namely publish the research reports. Every project files a detailed technical report which the government owns. Some agencies already publish them and all should. See my year old Kitchen article on this: http://scholarlykitchen.sspnet.org/2012/01/06/my-argument-for-public-access-to-research-reports/.
That was an excellent posting, David, and I agree with commenter T. Scott Plutchak that what you propose would actually go much further towards accomplishing the stated goal of OA than the OA systems and policies currently proposed (or in place) would do. FASTR is just another example of a bill that would accomplish its stated task far less effectively than what you propose — a fact explicitly laid out in its own language.
This is of course the position that the AAP has taken from the beginning.
Does FASTR apply to the NEH? We’ve all assumed that FRPPA did not. But the ACRL’s press release mentions the NEH as one of the agencies affected: http://www.acrl.ala.org/acrlinsider/archives/6682. It based its claim on a press release from one of the co-sponsors, Mike Doyle: http://doyle.house.gov/press-release/us-representatives-introduce-bill-expanding-access-federally-funded-research. As I look at the NEH budget, it doesn’t strike me that the NEH has an “extramural research budget” of over $100 million: http://www.neh.gov/files/neh_request_fy2013.pdf. Maybe I just don’t understand what “extramural” means. Would someone please enlighten me? Whether the NEH is included or not makes a VERY BIG difference to university presses!
“Extramural” means “outside the walls.” An organization that has an “extramural research budget” is one that gives research funding (i.e. grants) to persons or entities outside of its organizational boundaries.
The NEH’s annual budget is about $167,000,000, but I don’t know how much of that is earmarked for grantmaking, so couldn’t say whether FASTR would apply to the NEH.