By Tamlin H. Bason
The results of federally funded research, with certain exceptions for classified data, should be available to the public at no charge following a 12-month post-publication embargo, according to a White House memorandum released Feb. 22.
Authored by John P. Holdren, director of the Office of Science and Technology Policy, the memo was prompted by a We the Peoplepetition calling for free digital access to scientific articles that are based on taxpayer-funded research.
“The Administration is committed to ensuring that, to the greatest extent and with the fewest constraints possible and consistent with law and the objectives set out below, the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community,” the memo said. “Such results include peer-reviewed publications and digital data.”
The memo was addressed to the heads of executive departments and agencies. It directed each agency to submit within six months a draft plan detailing how it planned to expand public access to federally funded research.
“Scientific research supported by the Federal Government catalyzes innovative breakthroughs that drive our economy,” the memo said. “The results of that research become the grist for new insights and are assets for progress in areas such as health, energy, the environment, agriculture, and national security.”
All executive agencies with more than $100 million annual expenditures in research and development must submit their proposals for expanding public access to articles based on agency-funded research. The memo said that the proposals must contain the following elements:
(a) a strategy for leveraging existing archives, where appropriate, and fostering public-private partnerships with scientific journals relevant to the agency's research;
(b) a strategy for improving the public's ability to locate and access digital data resulting from federally funded scientific research;
(c) an approach for optimizing search, archival, and dissemination features that encourages innovation in accessibility and interoperability, while ensuring long-term stewardship of the results of federally funded research;
(d) a plan for notifying awardees and other federally funded scientific researchers of their obligations (e.g., through guidance, conditions of awards, and/or regulatory changes);
(e) an agency strategy for measuring and, as necessary, enforcing compliance with its plan;
(f) identification of resources within the existing agency budget to implement the plan;
(g) a timeline for implementation; and
(h) identification of any special circumstances that prevent the agency from meeting any of the objectives set out in this memorandum, in whole or in part.
The administration went on to require that the agency proposals detail how they will “[e]nsure that the public can read, download, and analyze in digital form final peer-reviewed manuscripts or final published documents within a timeframe that is appropriate for each type of research conducted or sponsored by the agency.” But the administration then expanded on what sort of “timeframe” would be considered “appropriate.”
“[A] twelve-month post-publication embargo period” will be the basic guideline, but the administration said that each agency can tailor that guideline to suit their own needs. An agency's embargo period, however, may be subject to revision if stakeholders object.
In the administration's official response to the We the People petition, Holdren said that the embargo represents an important compromise. He said:
We wanted to strike the balance between the extraordinary public benefit of increasing public access to the results of federally-funded scientific research and the need to ensure that the valuable contributions that the scientific publishing industry provides are not lost. This policy reflects that balance, and it also provides the flexibility to make changes in the future based on experience and evidence. For example, agencies have been asked to use a 12-month embargo period as a guide for developing their policies, but also to provide a mechanism for stakeholders to petition the agency to change that period.
The administration's move came a little over a week after the Fair Access to Science and Technology Research Act, or Fastra, was introduced into the U.S. Senate and House of Representatives Feb. 14 (33 PTD, 2/19/13). The bill, which has bipartisan support in both chambers, would force free access to copyrighted articles based on government-funded research.
Fastra is just the latest in Congress's decade-long attempt to address “open access publication.” The first attempt came in 2003 when then Rep. Martin O. Sabo (D-Minn.) introduced the Public Access to Science Act that would have excluded from copyright protection those works that result from government-funded scientific research (134 PTD, 7/14/03).
In 2004, the House Appropriations Committee recommended that the National Institutes of Health permit open access to NIH-funded research by requiring researchers to deposit peer-reviewed articles accepted for publication in the NIH's PubMed Central, an open access information system, within six months after publication of the article in a scientific journal (Pub. L. No. 110-161).
The NIH launched its Public Access Policy in 2005 (26 PTD, 2/9/05). The NIH policy states: “Final, peer-reviewed manuscripts must be posted to the [NIH Manuscript Submission System] upon acceptance for publication, and be made publicly available on [PubMed Central] no later than 12 months after the official date of publication.” The policy requires that grantees not execute a copyright transfer agreement contrary to the publication requirement.
The Congressional Research Service soon thereafter published a report, though, highlighting the debate between traditional subscription-based commercial publishers and supporters of open systems (161 PTD, 8/22/05). The report criticized the NIH policy, saying that the policy infringes on the copyright interests of federal grantees.
Attempts to promote public access continued nonetheless. The 2006 Federal Research Public Access Act--sponsored by Cornyn and Sen. Joseph I. Lieberman (I-Conn.)--was a forerunner to the current bill (86 PTD, 5/4/06).
In 2008, however, opposing legislation first arose. Rep. John Conyers Jr. (D-Mich.) introduced the Fair Copyright in Research Works Act, aimed at reaffirming the copyright protection for the articles (177 PTD, 9/12/08). That bill would have stipulated that federal agencies may not “impose or cause the imposition of any term or condition that … requires transfer or license to or for a Federal agency of … any right” provided under various provisions of the Copyright Act.
Competing bills introduced in 2009 continued the standoff between rights holders and advocates of public access (24 PTD, 2/9/09)).
In December 2011, Rep. Darrell E. Issa (R-Calif.) took over from Conyers, introducing H.R. 3699, the Research Works Act, to explicitly prevent a federal agency from making available for free the articles subject to copyright (08 PTD, 1/13/12).
According to H.R. 708, “the United States has a substantial interest in maximizing the impact and utility of the research it funds by enabling a wide range of reuses of the peer-reviewed literature that reports the results of such research, including by enabling computational analysis by state-of-the-art technologies.”
The House bill is sponsored by Rep. Michael F. Doyle (D-Pa.) and claims two co-sponsors, Reps. Zoe Lofgren (D-Calif.) and Kevin W. Yoder (R-Kan.). Its counterpart, S. 350, is sponsored by Sens. John Cornyn III (R-Texas) and Ronald L. Wyden (D-Ore.).
As with prior attempts at this legislation, and as with the administration's proposal, H.R. 708 and S. 350 would require federal agencies that provide more than $100 million in funding for external research to institute NIH-like public access policies. Each policy would require funded researchers to submit electronic versions of their peer-reviewed papers to be included in a database to be made publicly accessible within six months.
Fastra varies in substance from its 112th Congress predecessor only in adding a requirement that makes the database requirement explicit and more detailed. The bill would force agencies to make the articles available “in formats and under terms that enable productive reuse, including computational analysis by state-of-the-art technologies.”
The bills also repeat a call for each administration agency to submit an annual report to Congress, but add one requirement for the report: “an examination of whether such research papers should include a royalty-free copyright license that is available to the public and that permits the reuse of those research papers, on the condition that attribution is given to the author or authors of the research and any others designated by the copyright owner.”
One major difference between the administration's memo and Fastra is that the legislation would require that articles based on government-funded research be made available to the public “as soon as practicable, but not later than 6 months after publication in peer-reviewed journals.”
In a statement posted to its website Feb. 22 the Electronic Frontier Foundation, an advocate for open access, gave the White House credit for the memo as a whole but called the 12 month embargo “unfortunate.” The 12-month time line, however, seemed to please publishers.
The Association of American Publishers on Feb. 14 issued a statement voicing its displeasure with Fastra, saying the bill “would undermine publishers' efforts to provide access to high-quality peer-review research publications in a sustainable way, while ignoring progress made by agencies collaborating with publishers to improve funding transparency.”
But in a Feb. 22 statement posted to the organization's website AAP President and CEO Tom Allen praised the administration's efforts.
“In stark contrast to angry rhetoric and unreasonable legislation offered by some, the OSTP takes a fair path that would enhance access for the public, acknowledge differences among agencies and scientific disciplines and recognize the critical role publishers play in vetting, producing, establishing and preserving the integrity of scientific works,” Allen said.
A preliminary assessment indicates that the following departments and agencies are likely to be affected by the administration's shift in policy:
• National Science Foundation;
• Department of Education;
• Environmental Protection Agency;
• Department of Agriculture;
• Health and Human Services, including the National Institute of Health, the Center for Disease Control, the Food and Drug Administration, and the Agency for Healthcare Research and Quality;
• Commerce Department, including the National Institute of Standards and Technology, and the National Oceanic and Atmospheric Administration;
• Department of the Interior, including the U.S. Geological Survey;
• Department of Defense;
• Department of Transportation, including the Federal Aviation Administration, and the Federal Highway Administration;
• Department of Homeland Security;
• Department of State, including the Agency for International Development; and
Text of the memo is available at http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf.
Text of the Fastra bill is available at http://pub.bna.com/ptcj/HR708intro13Feb14.pdf.
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