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Mimi and Eunice: Viral Patient, by Nina Paley

Editor’s Note: I’ve spent much of my summer attending humanities meetings, and visiting with scholars outside of the STM realm. In the biomedical realm, Open Access (OA) is a well-established phenomenon. But for the humanities researcher, OA is a new frontier, one that was put together by an entirely different part of academia with different needs and different ideas about research “results”. There is great skepticism and increasing anger brewing in the humanities community about being subject to inappropriate policies, particularly any that impose a Creative Commons CC BY license on published work. I thought it was worth revisiting this 2013 post that looks at the separate intellectual property needs of these very different fields.

Is access to the research paper really the same thing as access to the research results themselves? Are funding agencies creating a false equivalency by confusing the two? And does this confusion favor researchers in some fields over others?

The principle that the results of research that has been publicly funded should be freely accessible in the public domain is a compelling one, and fundamentally unanswerable.

The quote above, from the Finch Report, stands at the heart of the reasoning for many of the public access mandates for research papers from funding agencies. Despite this very clear statement of an unanswerable principle, funding agencies including the RCUK, the Wellcome Trust and a host of US Government agencies continue to develop policies that ignore the fundamental question of what is meant by “results”.

What constitutes “results” is field dependent. For many researchers in the Humanities, the analysis, the “argument,” is what comes out of a research effort. For the comparative literature researcher, the dataset (perhaps the plays of William Shakespeare) is already well known and publicly available. The intellectual property generated by the research is the set of ideas and analyses about the dataset. For these researchers, the paper, or in many cases, the book, is indeed the research result.

But in the sciences, things can be very different. For the diabetes researcher, the result isn’t the paper written about the cure for the disease, the result is the cure itself. And given the intellectual property policies of the RCUK, Wellcome and the US government funding agencies, the researcher is encouraged to lock up access to those results behind a patent paywall. On the surface, this comes off as something of a bait-and-switch: it’s vital that the taxpayer be allowed to read about the cure for diabetes but if he wants to use that cure, well, he’s going to have to pay again.

One immediate effect of these differences is that it has created an unbalanced, unfair Open Access (OA) system for Humanities researchers. Much of the OA movement has been driven by biomedical researchers with a certain narrowness of vision. This is how my field works, thus every field works the same way so my principles are universal. Hence, everyone is well-funded (or funded at all) and can afford article processing charges, and is able to patent any valuable IP that results from research.

There is a small sect of researchers who insist that the definition of “open acess” has been completely settled, and that no debate will be tolerated regarding the one true pathway to progress. The rigid adherence to dogma (or at least an intense pedantry regarding the specific vocabulary used, and we all know how futile attempts to control popular use of language are) seems to dominate over notions of pragmatic flexibility, of finding different paths that offer maximum benefits for very different types of research.

A world where everyone must follow the rules tailored to one group of researchers is an imbalanced world. Under the BOAI definition of OA, Humanities researchers are asked to give up the fruits of their labors, their intellectual property, via the CC-BY licensing requirement, while STM researchers get to keep theirs through the continued acceptance of patents.

Tim McCormick has written eloquently about this imbalance as of late. His very pro-OA blog posts and other writings which fully embrace the concepts of adaptability and openness to new ideas are worth reading for those trying to make sense of OA for the Humanities.  He writes:

It’s not clear that scientific knowledge (factual, non ©) can be equated to humanistic (expressive, interpretive) knowledge. For STEM-based OA, expression (“literature”) is just a carrier for factual information, the possible basis of invention. It’s natural to see the carrier as non-ownable, like information, and want it to be as free and fluid as possible, to maximize opportunities for discovery and invention, which are high-value (and patentable). However, often in HSS, the expression (“literature”) IS the high-value output, from which the research may earn any future gain e.g. by licensing, compilation, book sales.

Beyond the STM/Humanities disparity, the societal value of how we treat researcher intellectual property is vastly more complex than the simple Finch statement that if the taxpayer funded it, the taxpayer should get it for free.

The NIH has just released a report titled, “Profiles of Prosperity, How NIH-Supported Research Is Fueling Private Sector Growth and Innovation”:

NIH-supported research added $69 billion to our GDP and supported 7 million jobs in 2011 alone. But the economic reality is about more than just numbers—stories involving lifesaving breakthroughs and real-world products and companies can be found all over the country.

Part of the mission of many funding agencies, particularly government funding agencies, is to improve national prosperity, often through investments that help drive the national economy. The NIH has had great success in this regard. Similarly, the Bayh-Dole Act, which allows US federally-funded researchers and their institutions to retain the intellectual property from their discoveries has been hailed as one of the most effective and important pieces of legislation of the last half-century, resulting in an estimated 5,000 companies formed since 1980 and an estimated 30% of the NASDAQ stock market’s value.

The question then should be asked, if federally (and otherwise) funded researchers were indeed required to relinquish all rights to their discoveries, would the same benefits have been created for society? Would progress and economic prosperity been improved or worsened by free access to actual research results?

One thing for certain is that universities would lose out on significant levels of financial support. The cash-strapped University of California system made more than $100 million in revenues from technology transfer in 2011. For a funding agency, there seems great benefit in investing in this manner. Rather than funding a short term research project, investing in a project that yields valuable patents can fund research for decades. If you teach a man to fish, and all that.

Academia seems better served by a system that requires private industry to contribute to the continued development of raw materials for exploitation. Patents require that those looking to exploit discoveries pay their fair share of support back into the system. This creates a symbiotic relationship between academics, industry and funding agencies. Each benefits from the other. If instead industry is given free access to research results, then the relationship turns parasitic, with the private sector feeding off of public funds with no need to return revenue back into the system.

These revenue streams are so important to UC that they’ve recently launched a new program to tightly lock up all researcher intellectual property with a small number of private corporations and investors. This lockdown on access seems somewhat paradoxical, given the UC’s recently released OA policy for faculty, which states that, “The Faculty of the University of California is committed to disseminating its research and scholarship as widely as possible.” The UC Regents, like the Finch Report, appear to draw a clear line between access to abstract knowledge and the ability to put that knowledge to practical use. The combination makes for a compelling business strategy though, with wide, free dissemination of the research papers serving as a marketing tool for the expensive licensing rights.

Similarly self-contradictory, Harvard has an OA mandate stating that they, “have an essential responsibility to distribute the fruits of our scholarship as widely as possible”, yet they charged some $14 million in 2011 for access to those fruits. These policies represent a practical recognition of the value that researchers generate, and an implementation that serves to fund that research by sharing the burden of costs with those looking to exploit those results.

To be fair though, while these potential rewards are highly attractive to universities, like lottery tickets, they only pay off for a minority. The majority of schools make no money, or lose money on technology transfer activities. “Only around twenty universities earn more than $20 million (15.5 M euros) in revenue from technology transfer every year, and many lose more money,” says Columbia’s Orin Herskowitz.

This gets to the other great imbalance offered by some routes to OA, namely that the financial burden shifts from the consumer to the producer. We’re already seeing demands that subscription fees be lowered for universities that have an increased financial burden due to paying Gold OA article processing charges. This seems an odd complaint about a system that is doing exactly what it was designed to do.

Estimates show that for the more productive universities, Gold OA charges would end up costing them more than the savings gained from dropping journal subscriptions. If we’re asking productive universities to shoulder the financial burden of access to scholarly papers for non-productive universities, should they also be asked to sacrifice the income technology transfer offers to their operating budget in order to make things cheaper for pharma and other industries? If the public paid for the STM research, then does it own the research or just the set of words and pictures used to describe the research?

In an era of reduced research funding and public support, asking the UC system to voluntarily give up that $100M or Harvard $14M per year is a non-starter. The many researchers who have benefited financially from patents, or who have started spin-off companies would also be equally unhappy. Along with the proposed benefits of OA, it is important to also recognize the necessary sacrifices it asks producers to make for consumers.

And if we’re not willing to ask universities and STM researchers to make those sacrifices, why insist that Humanities researchers do so? Is it better instead to continue to move away from “one size fits all” thinking, to let each field drive progress in its own optimal manner rather than forcing everyone to follow a set of rigid rules put together by a self-selected group with a seeming focus solely on science?

For the ten-year OA veteran, these questions may all seem settled and set in stone. But for many in academia (and funding agencies and governments), these are the early days of translating the OA ideal into a practical implementation, and the rules have yet to be written. Understanding exactly what the taxpayer or funder is entitled to and what each stakeholder is being asked to sacrifice are important first steps.

David Crotty

David Crotty

David Crotty is the Editorial Director, Journals Policy for Oxford University Press. He serves on the Board of Directors for the STM Association, the Society for Scholarly Publishing and CHOR, Inc. David received his PhD in Genetics from Columbia University and did developmental neuroscience research at Caltech before moving from the bench to publishing.

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Discussion

10 Thoughts on "Revisiting: Is Access to the Research Paper the Same Thing as Access to the Research "Results"?"

Since we are going back in time I offer my argument that the US Government should make the research report public and leave the journal article alone:
http://scholarlykitchen.sspnet.org/2012/01/06/my-argument-for-public-access-to-research-reports/.

Moreover, I now doubt that the government’s claim to a federal use right in articles it did not directly fund is valid. As I see it, if I write about my research after my research contract ends then the government has no right to that article.

Just to elaborate, I have been talking to the Energy Department’s Office of Science about this issue. They claim that their right to collect and publish journal articles is based on the acquisition regulation 2 CFR 200.315(b).
http://www.gpo.gov/fdsys/pkg/CFR-2014-title2-vol1/xml/CFR-2014-title2-vol1-sec200-315.xml

Here is the text of that regulation:
“(b) The non-Federal entity may copyright any work that is subject to copyright and was developed, or for which ownership was acquired, under a Federal award. The Federal awarding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.”

As I read this the journal article (the work) has to have been written (developed) under the award. The award contracts all have specific end dates (I have had several). Journal articles are often written after the contract end date, because one does not write up the results until the research is over. Such articles are not developed under the award. In fact a Federal program officer once told me point blank that “we do not pay people to write articles.”

As I read this the government has no right to these post-contract articles, but it is collecting and publishing them under the US Public Access program. I suppose one can argue that the research was part of the development, but then what is being copyrighted is the ideas not the text and that is incorrect. The copyright only begins with the writing.

The basic and fundamental laws of human endeavor once again come to the forefront, they being:

The law of unintended consequences and no good deed shall go unpunished!

It seems to me that those who don’t produce want the fruits of the labors of those who do and they want it for free!

Lastly, I feel as if I am reliving the page charge argument all over again, but now we call it OA. Should I live long enough, I believe that someone will come up with the idea of simply charging a subscription fee for access to journals and let copyright control ownership.

“…those who don’t produce want the fruits of the labors of those who do and they want it for free!” Really? This seems a little extreme since the argument above is talking about the fruits of labours that have been paid for by all of us. It’s not that we should all get something for free but that we should all get the things that we’ve been paying for.

But are you getting the things you’ve been paying for? Or just a story written about those things…

It seems like this is an argument against the seemingly true claim that “publicly funded should be freely accessible in the public domain”. Are you saying that it isn’t compelling? It seems more likely that the principle is valid but how it is to be done is not as simple as current solutions are assuming.

I’d say it’s an argument that it’s a complicated subject. Is the purpose of spending taxpayer money to generate free stuff for everybody? Or is it to drive economic development? Should we take away some of the most important incentives for having a research career and drive more people out of academia and into the business world? Would that resulting decrease in discovery be balanced by free access to what remaining things are discovered?

But if you truly feel that everything that is publicly funded should be freely publicly available, then this is an argument that you are not getting that at all. Being offered free access to an article written about a cure for cancer is a far cry from being offered free access to that cure.

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