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Publisher opposition to FRPAA

81 publishers have sent an open letter to Congress opposing the Federal Research Public Access Act (FRPAA).

Here's the press release <> and here's the letter itself <>. The letter was organized by the Association of American Publishers' Professional and Scholarly Publishing Division (AAP/PSP) <> and the DC Principles Coalition <>.

For background on FRPAA, see my article <> in the March issue of the SPARC Open Access Newsletter and my reference page <> at the Harvard Open Access Project.

Right now I'm just posting the news. In the comment section below, I'll add some responses.

#oa #openaccess #frpaa
81 Scholarly Journal Publishers Oppose Federal Research Public Access Act. Monday, 05 March 2012 | Andi Sporkin. Bill Imposes One-Size-Fits-All Government Mandates Impacting Private-Sector Organizatio...
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Tom Allen, President and CEO of the AAP, said, “FRPAA is little more than an attempt at intellectual eminent domain, but without fair compensation to authors and publishers."

Actually FRPAA is quite different from intellectual eminent domain. FRPAA would require agencies to "make effective use of any law or guidance relating to the creation and reservation of a Government license that provides for the reproduction, publication, release, or other uses of a final manuscript for Federal purposes" (Section 4.c.3). There are roughly two ways this could work.

(1) Agencies could use the NIH method for avoiding copyright infringement. The NIH method relies on copyright holder consent, not expropriation of copyright holder property.

(2) Agencies could use an existing federal-purpose license such as that codified in 2 CFR 215.36(a) (January 2005) <>. Under this method, agencies funding the research would possess "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." But articles by grantees would still be copyrightable, authors could still transfer rights to publishers, and publishers could still enforce the rights they acquired from authors. In eminent domain, property owners lose their property. Under this method, property owners would retain their property, but in effect the public would have a right of access to it.

What if some publishers find it unacceptable for the public to have access? They may opt out. This is a point the AAP overlooks in every public statement it has made against the NIH policy and FRPAA. If publishers believe for any reason that the NIH policy creates costs or risks that exceed the benefits, then they may refuse to publish NIH-funded authors. The same will be true under FRPAA. Neither policy affects a publisher's fundamental right to refuse to publish any work for any reason. I defend that right myself. Without it, publishing would become a propaganda arm of the state, and all publishing would lose credibility.

Authors subject to the NIH policy effectively ask publishers two questions, not just one: "Will you publish my article?" and "Will you publish it under these terms?" It's a business proposition that publishers may accept or reject. The situation will be the same under FRPAA.
The publisher letter also complains that FRPAA "limits where government-funded researchers may publish their work." Very misleading.

The NIH policy tells grantees that if a given publisher will not allow OA under the NIH's terms, then they must look for another publisher. In theory, authors could encounter publisher refusals, but in practice they do not. In practice, 100% of surveyed publishers accommodate the NIH policy. Not a single known publisher refuses to publish NIH-funded authors on account of the agency's OA policy <>.

But what if some publishers began to refuse to publish NIH-funded authors? What if FRPAA passes, OA mandates spread across the federal government, and some publishers refuse to publish federally-funded authors? If that happens, it would be the result of publisher decisions taken in response to federal policy, not the direct result of federal policy. It's up to publishers whether federal policy limits author freedom.

Moreover, of course, the purpose of the publisher letter is to protect publisher revenue, not to protect author freedom. Let authors speak for themselves about what kinds of freedom they want. The groundswell of author opposition to the Research Works Act <> suggests that a growing number of authors want OA. They even want OA mandates like the NIH policy, and they are willing to boycott publishers who lobby against those mandates.

The boycott evidence is new. But not all the evidence is new. See the growing number of universities where faculty voted unanimously to adopt OA policies <>.
DC Principles and AAP/PSP? Where's PRISM?
Look at the list of signatories on third page of the publisher letter <>. If you signed the petition to boycott Elsevier <> in part because it lobbied to repeal the OA mandate at the NIH (by lobbying for the RWA), then consider boycotting the publishers on this list.

If you belong to a society which has signed this letter, contact the leadership and ask it retract its opposition to FRPAA. Contact fellow members and work on electing new leadership more responsive to the needs of the membership.
The publisher letter also objects that FRPAA would "adversely impact the peer review system that ensures the high quality and reliability of scientific and other scholarly research in the United States." Baloney. For a full-length response to this old canard, see my article from September 2007 <>.
The publisher letter also objects that the archives, infrastructure, and dissemination mandated by FRPAA "will be largely duplicative of those already existing in the private sector." Not true.

Some publishers voluntarily providing OA to some content when it's sufficiently old. But this is a far cry from providing OA to virtually all publicly-funded research within six months of publication. If the signatories to this letter are saying that their voluntary efforts will approach what FRPAA would mandate, then the duplication argument starts to make sense. But in that case they have to stop arguing that OA to publicly-funded research would "adversely impact the peer review system" (quoting the letter) and "undermine publishers’ investments" (quoting the press release). They can't have it both ways.
At least 48 of the 81 signatures on the letter are from society publishers. (It's hard to get a precise number because it's hard to decide what counts as a "society" publisher.) But don't let this set of society publishers give the impression that society publishers as such feel threatened by OA. In 2007, +Caroline Sutton and I identified 425 societies publishing 450 full or non-hybrid OA journals <>. We updated our list three months ago and found 530 societies publishing 616 full OA journals <>. We posted our data online in a Google Spreadsheet <>, and since then the user community has helped us to up the tallies to 555 societies publishing 643 OA journals.
Inside Higher Ed noticed <> that the American Anthropological Association did not sign the publisher letter, and speculates about the reason: The AAA "caught flak last month from some of its members after its executive director wrote a note to the White House Office of Science and Technology Policy criticizing public access mandates." This is another sign that networked pushback can make a difference.
The publisher letter also repeats the old nationalist argument: "[FRPAA] would also compel American taxpayers to subsidize the acquisition of important research information by foreign governments and corporations that compete in global markets with the public and private scientific enterprises conducted in the United States."

Carolyn Maloney used a similar nationalist argument in defense of RWA <>: "Two-thirds of the access to PubMed central is from non-US users. In effect, current law is giving our overseas scientific competitors in China and elsewhere important information for free. We are already losing scientists due to a reduction in funding for federal research. This policy now sends our value-added research papers overseas at no cost."

The AAP first used this argument in 2006 in attacking the first iteration of FRPAA <>: "Remember -- you're talking about free online access to the world...You are talking about making our competitive research available to foreign governments and corporations."

My reply to the 2006 version of the argument still applies to the current versions <>: "Note that we're talking about published research, not classified research that isn't published. Thank goodness our enemies can't afford to pay subscriptions or visit libraries. Thank goodness harming Americans has the side-effect of harming foreigners....Thank goodness Americans have never benefited from scientific advances made by non-Americans. Thank goodness publishers are willing to collect subscription fees for this patriotic purpose. Thank goodness publishers are willing to shoulder the responsibility of controlling access to our research. We know that they don't have to. They didn't conduct this research, write it up, or fund it...."
My reference page on FRPAA <> includes the major statements of opposition as well as the major statements of support. It now includes this publisher letter.
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