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Mistruths, Insults from the Copyright Lobby Over HR 3699

The views expressed are those of the author and are not necessarily those of Scientific American.


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As you know from my last post, I am staunch proponent of open access to scientific information, especially the variety that I paid for by virtue of taxation. The Research Works Act (HR3699) being proposed now will lock away taxpayer funded research from the hands of those whose hard-earned wages funded the research. It’s really a no-brainer and the NIH compromise was generous, allowing publishers to make a profit from research works for a whole year, during the crucial access time for new articles. The AAP argument that they add value by administering peer-review is disingenuous at best, but insulting to the scientists that voluntarily staff their peer reviewer army. Researchers freely add-value to for-profit institutions through providing all peer-review services and assigning copyright to publishers. As Heather Morrison writes in her thorough dissertation on scholarly communication: “Giving exclusive copyright to any one party is arguably a disservice to all of the other parties who contributed to the research, or for whom it was conducted.” Additionally, threats of job losses due to the NIH policy on open access are fear-mongering and taxpaying Americans should not have to bear the burden for their failure to innovate an outdated and inefficient mode of research communication.

Of course, scientists are as much to blame. We buy into this crappy system, convince ourselves it works and refuse to consider alternative models cause such out-of-the-box thinking, while occasionally praised among scientists, is not rewarded by the system of tenure and promotion in academia. The paper becomes the final product, a measurable unit whose value is not in the contents it holds and the progress it promises, but whose value is characterized by unscientific traits such as the title of the journal that contains it and a useless metric with artificial flavoring that has a value in and of itself that is wholly irreproducible. The paper is NOT the final product. Science doesn’t end at publication, it continues.

As H.R. 3699 was clearly a bill written to increase the profits of the publishing industry, it came as no surprise to me to find the Copyright Alliance’s glowing support cross my eyeballs tonight. It goes a little further than the vaporous AAP release in supporting the Research Works Act and denigrates scientific integrity, insults the government and taxpayers, and wades knee-high into irrelevant points. Below is their text with my comments in bold:

“The Copyright Alliance praises U.S. Representatives Darrell Issa (R-CA) and Carolyn Maloney (D-NY) for their bipartisan introduction of H.R. 3699, the Research Works Act. The proposal would overturn an unprecedented federal government taking of copyrights from certain authors and researchers.”

WRONG. Authors and researchers voluntarily give up their profits as required by most for-profit publishers once a paper is accepted for publication. The government is not taking away copyrights, the publishers make scientists sign it over. Many open access publications, though, allow authors to retain copyright and utilize Creative Commons licensing.

“Providing a federal grant to fund a research project should not enable the federal government to commandeer and freely distribute a subsequently published private sector peer-reviewed article. But a 2008 mandate at the National Institutes of Health requires just that – disregarding the significant value added by the private-sector publisher whose activities are not funded by the government.”

WRONG. Funding agencies have every right to impose restrictions on their funds. It’s their money, their rules. In fact, I can’t recall ever signing a contract that DIDN’T have some conditions on it. Using language like “commandeer” and “freely distribute” is misleading. What if the money were from a private foundation instead of the government? On the other hand, publishing companies are free to disagree with the policy and not publish government funded research because of this requirement. It is also free to charge higher fees to offset this. That is their decision as profit-driven vehicles. But it does not have a right to tell the funder how recipients should spend their money. From the moment a researcher gets a grant accepted up to the moment they send off a manuscript  for review, publishers have nothing to do with a funder’s money.

Additionally, the NIH mandate does nothing to “disregard” private-sector’s added value. It was a major concession to private industry to allow open access after one year, recognizing that it does add value by administrating, editing, printing and distributing the work, in addition to managing the peer review process. During the first year of a publication’s life is when access requests would be strongest anyways. In fact, during the few years that the NIH policy has been in place, profits of at least one major academic publisher haven’t changed in at least decade from 30-40% operating profit margin.

“This is counterproductive for several reasons: it is not fair to other investors in the research, if there are any;”

Irrelevant. As I mentioned above, each funder has every right to put conditions on their money. Receiving money is a privilege won by submitting proposals, and if there are multiple funding sources for a research work with conflicting requirements it is between the researcher and funder to work out – not the publisher. This is creating a problem that doesn’t exist.

it arbitrarily limits the value of the copyright in the article for the author and publisher, and harms the publisher’s investments in ensuring a quality publication; and, it results in reduced incentives for both these groups to publish peer-reviewed articles explaining the nature and results of government-funded research in a manner that ultimately harms society when the investment in publication dries up due to lack of ability to recover their costs.

Misleading. Author’s copyright is often irrelevant cause it is typically signed over to the publisher. But, yes publisher’s investments are harmed because they can no longer continue earning a profit after 12 months. Yet, they can still charge for access to the article at their own website. They are merely required to deposit a copy of the research work in a public repository, like PubMedCentral.

The quality of the publication lies in the content of the article not the processing, editing, and distribution. I do not include peer review because it is done for free by other researchers. The quality of peer review varies no matter how “prestigious” you think your publication is. This is shown time and again through the process of retraction. I fail to see how there will ever be “reduced incentives” for publishing peer-reviewed literature. It is a process borne out of the scientific method, not the publishing industry. It will exist in some form regardless of publishing company-written legislation, as shown by the immense popularity of the PLoS One journal’s method of pre-publication peer review for technical accuracy and post-publication peer review for impact, technicalities or anything else for that matter.

Finally, the ultimate irony of the last sentence is that the Copyright Alliance fails to understand what “ultimately harms society” is lack of access to the research works themselves! That last statement shows how little they actually are aware of emerging internet technologies. Let’s say worst case scenario is that there is NO MORE MONEY EVER for publishing research results. Its Armageddon for the publishing industry and they all folded because of overblown government restrictions on their 30+% profit margins. What is preventing researchers from posting their results to publicly available online repositories like say… their personal webpages, or arxiv, or PLoS (which conveniently offers full or partial fee wavers if you do not have funds to cover publishing costs while managing to be profitable after only seven years)? The message is not the medium, folks.

This is just typical copyright lobby and publishing industry fear-mongering. So long as people buy into the Impact Factor scam they will always have business, but they aren’t satisfied there. They’ve watched PLoS and BMC grow and know how popular and successful they’ve become. They know the way of the future is open access so they are now trying at every turn to force the government’s legislative hand to skew the rules so that they can continues embezzling government funds through the guise of research works publication.

“This reversal of centuries of copyright law occurred without input from the affected communities, and without benefit of oversight by congressional committees with expertise and responsibility for copyright laws and enforcement.

This bipartisan bill ensures that privately-funded research works that describe or interpret federal research and are intended for public publishing will receive that treatment, and preserves the rights of research funders and publishers.”

Copyright law is not reversed! Copyright law remains as it ever has. If for-profit publishers’ do not like the demands placed by government funders, which are enacted in the interest of its constituents, they are free to jack up the costs or refuse government funded research works. Then they can sit back and see if the market forces like this or not and we will finally see how researchers value artificial prestige over broad, efficient dissemination. Like any industry, innovate or die.

Another ill-conceived press release in support of this damaging piece of legislation filled with misleading statements and half-truths designed to provide talking points and ammo to sympathetic congress members who have their pockets lined by publishing company lobbyists. Let’s not let them embezzle our payroll wages under the guise of providing artificial services that can by provided by other, more forward-thinking institutions who believe in providing taxpayer access to their paid-for deliverables and lack such revolting disdain for our government acting in its citizens’ interests. Follow up with the chatter on Research Works Act HR 36999 over at John Dupuis’ blog, who has archived all the reports, news and opinion concerning this issue and write your congressman and implore them to support their constituents’ access to material they have rightfully paid for.

Kevin Zelnio About the Author: Kevin has a M.Sc. degree in biology from Penn State, a B.Sc. in Evolution and Ecology from University of California, Davis, and has worked at as a researcher at several major marine science institutions. His broad academic research interests have encompassed population genetics, biodiversity, community ecology, food webs and systematics of invertebrates at deep-sea chemosynthetic environments and elsewhere. Kevin has described several new species of anemones and shrimp. He is now a freelance writer, independent scientist and science communications consultant living near the Baltic coast of Sweden in a small, idyllic village.

Kevin is also the assistant editor and webmaster for Deep Sea News, where he contributes articles on marine science. His award-winning writing has been appeared in Seed Magazine, The Open Lab: Best Writing on Science Blogs (2007, 2009, 2010), Discovery Channel, ScienceBlogs, and Environmental Law Review among others. He spends most of his time enjoying the company of his wife and two kids, hiking, supporting local breweries, raising awareness for open access, playing guitar and songwriting. You can read up more about Kevin and listen to his music at his homepage, where you can also view his CV and Résumé, and follow him twitter and Google +.

ResearchBlogging.org Editor's Selection Posts on EvoEcoLab!

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The views expressed are those of the author and are not necessarily those of Scientific American.






Comments 6 Comments

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  1. 1. Lou Jost 12:39 pm 01/16/2012

    Keep up the good work on this issue, Kevin. This is a crucial moment for the future of science.

    Link to this
  2. 2. JamesDavis 12:52 pm 01/16/2012

    This is a well written article, and as I told you before, I own Davis E-Book Publishing, an all digital national and international publishing company: http://www.davis-publishing.com. I agree with the scientist and I agree with the taxpayer – since I am a taxpayer and a somewhat of a scientist. I can distribute the scientists work world wide in a manner of minutes and I will publish the papers at the discretion of the scientist or university. If needed, I will prepare a contract to accommodate each scientist or university and I will even publish them at no expense if they cannot get a grant to pay me and they can make up the difference when they get another grant, and if they cannot get another grant, I will still publish them at no charge. I can even prepare the paper for immediate download at no charge to the taxpayer, so a peer review can really be a peer review.

    Kevin, since you are on top of this situation and I agree with everything you said, why don’t you contact these scientists and tell them what I can do for them and the taxpayer. I am not held under government rules because my company is not listed in the United States, but I am a strict enforcer of copyright laws that pertain to all authors around the world and I work with governments to make sure authors are protected and do not relinquish their rights to any government or publishing company, and I will set up a journal, to the liking of the scientists and universities and publish their work at a price that they can afford and distribute it to the population at whatever rate the scientist or university decides fair, and in this case ‘fair’ means free.

    Link to this
  3. 3. Kevin Z 8:58 pm 01/16/2012

    The following is an update I posted on my Google+ stream (https://plus.google.com/106120978621025253392/posts/TcdGYy43yZE) in response to a questions via twitter. Posting it here as it is very relevant to the discussion:
    >>>
    In regards to my latest post at #sciamblogs dissembling the Copyright Alliance mistruths and insults (http://blogs.scientificamerican.com/evo-eco-lab/2012/01/16/mistruths-insults-from-the-copyright-lobby-over-hr-3699/), +Jason Snyder asked via twitter “if publishers do not have to accept NIH’s mandate for open access, ie if that obligation falls on the author, then… is #RWA moot?”

    It’s a good question. It actually IS incumbent upon the author to ensure that they make their publication freely accessible, typically via the PubMedCentral database, not the journals. When the NIH policy came into effect, though, journals of many of the major publishers agreed to comply, but with the caveat of having the 12 month sliding window. This allowed researchers to publish pretty much as before, unaffected by the #openaccess mandate because the journals agreed to deposit works automatically (I think this true) after the appropriate time was up.

    So what happens if journals refuse to make their taxpayer-funded content open access? Is there a penalty for the researcher? I don’t know, actually. But it could force scientists to either budget better for high open access fees in hybrid publishers or to not submit their work since it can’t fulfill their funder’s criteria. Either option lessens the places where scientists can publish their work and could effectively bar them from accessing high impact journals. Thus the barrier to job-securing high impact journals becomes money, not quality (though many would argue we are already there). The consequences of this for employment and promotion purposes should be obvious.

    So, to answer the question, publishers do not have to abide by the guidelines, it is ultimately incumbent upon the researcher. BUT, #ResearchWorksAct is not moot because they are attempting to bar ANY government agency from even asking their funded researchers to deposit research results in a publicly available. This is why all the advocates, such as myself, are up in arms! Publishing companies are using congressional overreach to prevent the government from acting in its citizens interest. This is why RWA is not moot, even though it is incumbent upon authors to ensure they publish their works with a publication that abides by their funder’s rules.

    Link to this
  4. 4. StevanHarnad 6:19 am 01/18/2012

    ee:
    “Research Works Act H.R.3699:
    The Private Publishing Tail Trying To Wag The Public Research Dog, Yet Again”

    http://openaccess.eprints.org/index.php?/archives/867-guid.html

    EXCERPT:

    The US Research Works Act (H.R.3699): “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that — (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.”

    Translation and Comments:

    “If public tax money is used to fund research, that research becomes “private research” once a publisher “adds value” to it by managing the peer review.”

    [Comment: Researchers do the peer review for the publisher for free, just as researchers give their papers to the publisher for free, together with the exclusive right to sell subscriptions to it, on-paper and online, seeking and receiving no fee or royalty in return].

    “Since that public research has thereby been transformed into “private research,” and the publisher’s property, the government that funded it with public tax money should not be allowed to require the funded author to make it accessible for free online for those users who cannot afford subscription access.”

    [Comment: The author's sole purpose in doing and publishing the research, without seeking any fee or royalties, is so that all potential users can access, use and build upon it, in further research and applications, to the benefit of the public that funded it; this is also the sole purpose for which public tax money is used to fund research.]”

    H.R. 3699 misunderstands the secondary, service role that peer-reviewed research journal publishing plays in US research and development and its (public) funding.

    It is a huge miscalculation to weigh the potential gains or losses from providing or not providing open access to publicly funded research in terms of gains or losses to the publishing industry: Lost or delayed research progress mean losses to the growth and productivity of both basic research and the vast R&D industry in all fields, and hence losses to the US economy as a whole.

    What needs to be done about public access to peer-reviewed scholarly publications resulting from federally funded research?

    The minimum policy is for all US federal funders to mandate (require), as a condition for receiving public funding for research, that: (i) the fundee’s revised, accepted refereed final draft of (ii) all refereed journal articles resulting from the funded research must be (iii) deposited immediately upon acceptance for publication (iv) in the fundee’’s institutional repository, with (v) access to the deposit made free for all (OA) immediately (no OA embargo) wherever possible (over 60% of journals already endorse immediate gratis OA self-archiving), and at the latest after a 6-month embargo on OA.

    It is the above policy that H.R.3699 is attempting to make illegal…

    http://openaccess.eprints.org/index.php?/archives/867-guid.html

    Link to this
  5. 5. Quinn the Eskimo 9:53 pm 01/19/2012

    I see. So if they use big words and really long paragraphs, then nobody will understand them, and they are okay to publish?

    Taxacious!!!

    Link to this
  6. 6. bucketofsquid 11:09 am 01/25/2012

    Copyright and tax law have long needed a major overhaul. I think now is the time to vote against all congressional incumbents. These “journals” need to remember that they are not the only option. The Feds can easily provide alternative options that don’t involve these “journals” at all. If these copyright parasites are too short sighted to deal with reality then they need to die out just like the Luddites did.

    Link to this

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