Bill Forcing Government Agencies to Publish Research Papers Reintroduced in Congress

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The Fair Access to Science and Technology Research Act, or Fastra, which would force free access to copyrighted articles based on government-funded research, was reintroduced into the U.S. Senate and House of Representatives Feb. 14.

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 Fastra legislation has bipartisan backing. 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 Sen. John Cornyn III (R-Texas), with Rep. Ronald L. Wyden (D-Ore.) as co-sponsor.

In the previous Congress, though, another House bill favored protecting the copyright rights of publishers. That bill's sponsor, Rep. Darrell E. Issa (R-Calif.) did not return BNA's call for a comment.

Debate Dates Back to 2003

Legislative efforts to address “open access publication” began in 2003. 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, Issa 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).

Current Bills Go Even Further

The current bills were introduced without comment by their sponsors.

As with prior attempts at this legislation, 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.”

A statement in a section titled “Patent or Copyright Law” says: “Nothing in this Act shall be construed to affect any right under the provisions of title 17 or 35, United States Code.”

Neither bill was referred to a Judiciary Committee, which has responsibility for intellectual property legislation. H.R. 708 was referred to the House Committee on Oversight and Government Reform. S. 350 was referred to the Committee on Homeland Security and Governmental Affairs.

Reactions Repeated

As in the past, the American Association of Publishers reacted negatively. In a Feb. 14 statement, the AAP said 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.”

And as in the past, the Alliance for Taxpayer Access issued a call to action to its members to support the two new bills. “Because U.S. taxpayers underwrite this research, they have a right to expect that its dissemination and use will be maximized, and that they will have access to articles reporting on the results,” the organization said.

By Tony Dutra  

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