Scholarly publishers are already working to make federally funded research as free as possible as soon as it is published. Why do we need a law to enact what is already taking shape?

It comes down to politics.

Washington and spending money

Amid stormy political times in the USA, academic interests are registering as a point of confrontation between Congress and Trump. Taking a charitable view, academia is just not at the top of the Trump agenda, and this includes scientific research. A darker view can be gleaned from some of Trump’s words and actions. Trump in a four page White House memo on August 17th, 2017, had proposed federal budget priorities for 2019 that translate to cutting back on research, unless there are powerful economic, or military considerations in play. Earlier in the year, Trump suggested a cut of $6 billion for the National Institutes of Health (NIH). As I write though, the House and Senate have thumbed their noses at the President, and rejected some of the cuts, most dramatically the NIH cuts, instead approving a $1.1 billion increase. The Senate Appropriations Committee approved an even more favorable bill that sees an increase in $2 billion to the NIH.

It is not all roses and chocolates though. The National Science Foundation (NSF) was originally facing reductions of 11%, but now the House and Senate Appropriations Committees have completed work on the fiscal year 2018 appropriations bills that fund the NSF, rejecting the Administration’s proposed 11% reduction to the research agency. Both bills would provide approximately $7.3 billion, a 2% decrease from the fiscal year 2017 level. Even the National Oceanic and Atmospheric Administration (NOAA) is being heavily cut, and yet, as we have just seen in Texas and Florida, we are in an era of worsening storms — research in this area is vital. Take a look at recent Trump nominees to top science administration posts. Sam Clovis is the nominee for the Chief Scientist at the U.S. Department of Agriculture (USDA). Clovis not a scientist, and indeed is a climate change skeptic. There is also concern that even at this stage in the year, there is no Science Advisor to the President, a position that is often played by the Director of the Office of Science and Technology Policy (OSTP) – not yet filled.

And yet there is a bill that was just reintroduced into both the House and the Senate that is called the Fair Access to Science and Technology Research Act of 2017 (FASTR). This is a bill that arguably does not serve the scientific community well. In a sense it is redundant in that the OSTP has already produced a mandate to US funding agencies to design mechanisms for allowing public access to such research. In fact, agencies have all produced pretty much the same solution to achieving this goal. There are a few competing options for funders, including a mechanism for allowing public access to funded articles at the publisher site – CHORUS. Full disclosure here, in that as an officer of the non-profit organization, CHORUS, I may be a little biased. CHORUS has blossomed as funding agencies investigate how to fulfill their goal of making funded research openly available to access. CHORUS essentially provides public access to published articles reporting on funded research. Why then does FASTR exist, if funding agencies are already fulfilling its goal of providing public access to articles reporting on federally funded research, working with publishers and other stakeholders to fulfill the OSTP mandate?

Part of the answer lies in history. FASTR in some form, or other, has been around a long time, and legislators want to keep legislating. Such is the glacial nature of movement through House and Senate for bills that don’t quite cut it. Back in 2006 two senators, John Cornyn (Republican-Texas), and Joe Lieberman (former Senator (now an Independent) – Connecticut) introduced the precursor to FASTR, The Federal Research Public Access Act of 2006 (FRPAA).

Cornyn said when introducing the bill to the senate:

Each year, our federal government invests more than $55 billion on basic and applied research. That’s roughly 40 percent of the current 2-year budget for my home state of Texas”. “Making this information available to the public will lead to faster discoveries, innovations, and cures”. “This bill will give the American taxpayer a greater return on its research investment.

According to Lieberman, “Taxpayer-funded research should be accessible to taxpayers. Our bill will give researchers, medical professionals and patients in Connecticut and throughout the nation access to scientific discoveries and advancements that can help bring new treatments and cures to the public.”

So, you can see where they were coming from, and yet this ignores, in part, the vibrant ecosystem of academic societies, publishers, libraries and academics as research is done and published. There appears to be little understanding among policy makers of how scientific societies serve their memberships and support academic life. In fact, FRPAA envisaged a government entity like PubMed Central (PMC) as supporting this research. In the end, The OSTP mandate to funders has produced a more nuanced approach to achieving access to Government funded articles. There was also an attempt to try and make publishers of all stripes make these articles in some semblance of final form, openly available in 6 months. There has been quite a lot of disagreement on this point with open access (OA) advocates pushing hard for mandating this notion, and publishers saying that it just does not make sense, given the range of fields, with differing half-lives seen in the impact of research articles in different fields. Math articles are as relevant today as they were fifty years ago.

Well, the bill died. Cornyn and Lieberman had another go in 2009, but it died again. In 2010, while another attempt was ongoing with FRPAA, President Obama signed into law the America COMPETES Reauthorization Act of 2010. This included language that required to OSTP to direct funding agencies to develop public access policies.

Confusingly, despite the work initiated through OSTP, the FRPAA kept coming back, being reintroduced in 2012, co-sponsored by 31 House members in Congress, and in the Senate by Sen. Patty Murray (Democrat-Washington), John Cornyn (Republican-Texas), Ron Wyden (Democrat-Oregon), and Kay Bailey Hutchison (Republican-Texas). FRPAA in 2012 did not go anywhere either.

One would have thought that would be it. Instead, FRPAA evolved into FASTR with this latest bill being introduced in 2015 in House and Senate (Cornyn still active as a co-sponsor in the Senate). The bill in its new form withered on the vine, but now again in 2017 has shown signs of life in its reintroduction in August and can be seen here in House and Senate editions – essentially identical to each other (other than the House bill still calling for a 6-month embargo and the Senate 12 months) and to what was produced in 2015. Notably, the press releases for introduction this year fail to mention that the OSTP has already required public access and that all of the agencies covered by the bill already have public access policies in place. In fact, SPARC’s advocacy document falsely claims that only NIH has a public access policy. Perhaps they know that the truth undermines the purpose of the bill?

What would the bill, require, in the unlikely event it were signed into law?

  • Federal departments and agencies with an annual extramural research budget of $100 million would be required to develop a policy to ensure researchers submit an electronic copy of the final manuscript accepted for publication in a peer-reviewed journal. However, all such agencies already have policies that require public access (although not all require “submission” to the agency).
  • Manuscripts would need to be preserved in a stable digital repository maintained by that agency or in another suitable repository that permits free public access, interoperability, and long-term preservation.
  • Taxpayer funded manuscripts should be made available to the public online and without cost, no later than six months (12 months in the Senate bill) after the article has been published in a peer-reviewed journal.
  • Agencies would investigate the feasibility of open licensing options for research papers they make publicly available as a result of the public access policy, the notion being enhanced promotion, and productive reuse and computational analysis of those research papers, and they would be encouraged to make broad use of regulations that reserve government licenses.

After all this work, over many years, FASTR really only achieves what to the most part already exists. An interesting new study entitled “The State of OA: A large-scale analysis of the prevalence and impact of Open Access articles”, from Heather Piwowar and Jason Priem of Unpaywall, backs up this assertion. The authors were surprised by the high number of articles freely available on publisher web sites without an explicit open license. The authors dub this “Bronze Open Access”, though really this probably should be seen as articles that are publicly accessible. The study is a fascinating, data-rich read, and well worth spending some time with. The study indicates that 28% of all journal articles are openly available, and that the largest proportion of these are publicly available on a publisher’s web site — Bronze OA — as they term it. Only 7% of the literature overall is Green. In amongst all this, there is the old thorn in the side for societies and publishers of requiring shorter and shorter periods of exclusivity to support ongoing investments in publishing. To my rather politically insensitive eye, this all seems like quite the waste of time and energy. The community has listened to the needs of funding agencies, and is actively engaged with the scientific community to design an appropriate publishing future. Few at this point have objections to the goals of FASTR – after all we have moved beyond objections to an open access business model altogether in 2017. The devil, as always, is in the details. Mind you this is with much discussion about the relative merits of Gold, Green and Platinum/Diamond, and the hope that new models will emerge.

The mud is truly sticky for FASTR, and with no serious leadership of science in the current political administration, it is hard to see what, if anything, will happen next. One thing I know for sure is that at the American Mathematical Society (AMS) we will keep a close eye on progress. The AMS Director of the Washington Office, Karen Saxe, is our person on the ground – a math professor who worked for Senator Al Franken as an AMS-AAAS Science & Technology Policy Congressional Fellow. We will continue developing our science publishing ecosystem regardless of FASTR, which no doubt will be in limbo for another decade.

Robert Harington

Robert Harington

Robert Harington is Associate Executive Director, Publishing at the American Mathematical Society (AMS). Robert has the overall responsibility for publishing at the AMS, including books, journals and electronic products.

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Discussion

8 Thoughts on "Science, Publishing and Government Bills: Fair Access to Science and Technology Research Act (FASTR)"

“Scholarly publishers are already working to make federally funded research as free as possible as soon as it is published.”
Is this true?
One of my professional societies, the American Public Health Association, has a default two-year embargo on AJPH articles in PMC. Federally funded authors can request that AJPH comply with the public access policy within the 12-month window, or use the NIHMSS to do it themselves, but it doesn’t seem to work all the time. There are 35 AJPH papers that are identified in PubMed as funded by NIH Institutes, and which are already past the 12-month grace period of the NIH Public Access policy, whose full text is embargoed in PMC.
In fairness, some of them have epub dates before 9/20/2016 but come from the October or November 2016 issues; if the 12-month public access policy clock starts with the date of publication instead of electronic publication, those might be in compliance. That still leaves some 19 NIH-funded papers published in AJPH between November 2015 and July 2016 that are currently embargoed in PMC — for example, https://www.ncbi.nlm.nih.gov/pubmed/26270287.
Forget making “federally funded research as free as possible as soon as it is published” — in these cases the journal isn’t even making federally funded research as free as possible within the timeline set by the NIH public access policy.

Results vary quite a bit publisher to publisher. Compliance with the now 883 policies tracked by ROARMAP is a complex undertaking for authors, institutions and publishers (https://scholarlykitchen.sspnet.org/2015/01/15/compliance-the-coming-storm/). One unintended consequence of this regulation is giving an advantage to the larger, wealthier publishers that are able to approach these issues at scale, while smaller independent publishers may struggle to keep up with all the rules.

I too am surprised by the opening line because the evidence doesn’t seem to be there, at least, I didn’t find it when researching my recent article in Learned Publishing https://goo.gl/DjmoL2. Whilst I can see the utility of services like CHORUS, I have a nagging feeling that these are essentially devices invented by incumbents in an attempt to keep the status quo going. As I argue in my article, collectively, stakeholders in scholarly communications have been so slow in delivering open access, we’ve let the pirates in. More importantly, funders and policy makers patience is running out. What we haven’t done is look at the challenge from the users’ perspective (readers and authors) – had we done so, Green OA with all its trappings, like ROARMAP, would never have seen the light of day. Fresh thinking is needed to find really simple solutions, not complex workarounds.

I don’t know. From the cited Unpaywall study, publishers are voluntarily outpacing both green and gold OA, making more material freely available on their own outside of OA efforts. They may have been slow to deliver “open access” but are clearly moving faster to provide public access.

The OSTP directive (there’s no use of the word mandate anywhere in the document) is a statement of policy from an office directly associated with the White House. Because it is a directive from a White House office, the current inhabitant of the Oval Office could rescind it tomorrow if he chose to do so. FASTR would be law, enacted by a vote of Congress, and as such it would take congressional action to alter or rescind that law (or a judicial finding, via a challenge to the law in court, that some portion of the law was not legal). I believe that is at least one of the reasons (and a significant one) for why proponents of FASTR (and its predecessor FRPAA) have continued to introduce a bill into Congress that addresses these issues.

The problem with cementing things into law at this point is just that, cement. As is evident by how slowly each agency has moved toward a policy, and how many years this legislation has hung around, the US government moves very slowly. Right now we are just starting to see how these policies work, how much compliance occurs, how much that compliance costs the agencies and how much it costs the researchers and their institutions. It is all based on access concepts (Gold/Green OA) that many are now questioning as to whether they are the right way to go or new approaches are needed. The OSTP directive deliberately built in an ability for each policy to evolve, to change over time and required each to be open to receiving complaints and data showing commercial harm or suggestions as to how to shorten embargo periods. Once you turn this into a law, that’s it. It will take years, if not decades to make any changes, and even if the whole world goes 100% Gold OA, the NIH, for example because it is required by law, will still be stuck spending millions of dollars each year to maintain PMC, even after it becomes redundant and no longer of value. Right now there’s great ability for flexibility, evolution and new ideas to be incorporated. Lock it down with a law, and you lose that.

The SPARC website is correct. The only stable public access policy is with the NIH because it is law. As commented earlier, the OSTP public access directives for other agencies can be rescinded by the White House at any time. Bronze OA is also unstable access. The stability of the access points matter a lot. That’s why laws are sought. Whether they over or under reach is a different point.

First, it should be noted that as part of the agreement that publishers sign to join CHORUS, there is a legally-binding requirement for perpetual public access to the articles covered. Each publisher deposits a copy of any funded article with a dark archiving service so that, should the publisher cease to offer a public access copy of the article, the dark archive version is brought to light. This is actually a more ironclad guarantee of public access than that offered by PubMed Central because even though it is currently required by law, laws are not immutable and can change over time. So if you want stability, your best bet is CHORUS.

That said, changing laws is a slow process. And, as I’ve said elsewhere in these comments, the OA world continues to evolve. Are you so certain that the current approaches, Gold and Green OA are so perfect that no changes will ever occur, or that new and better methodologies will not be found? If not, then why lock things down in their current state with a law? Why not let things continue to develop?

Also, is “Bronze OA” really a thing, or is that just a made-up term for what the US Government calls “public access”?

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