There's been a lot of buzz in the science blogosphere recently about the Research Works Act, a piece of legislation that's been introduced in the U.S. that may have big impacts on open access publishing of scientific results. John Dupuis has an excellent round-up of posts on the subject. I'm going to add my two cents on the overarching ethical issue.
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. ...
In this Act:
(1) AUTHOR- The term 'author' means a person who writes a private-sector research work. Such term does not include an officer or employee of the United States Government acting in the regular course of his or her duties.
(2) NETWORK DISSEMINATION- The term 'network dissemination' means distributing, making available, or otherwise offering or disseminating a private-sector research work through the Internet or by a closed, limited, or other digital or electronic network or arrangement.
(3) PRIVATE-SECTOR RESEARCH WORK- The term 'private-sector research work' means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.
(Bold emphasis added.)
Let's take this at the most basic level. If public money is used to fund scientific research, does the public have a legitimate expectation that the knowledge produced by that research will be shared with the public? If not, why not? (Is the public allocating scarce public funds to scientific knowledge-building simply to prop up that sector of the economy and/or keep the scientists off the streets?)
Assuming that the public has the right to share in the knowledge built on the public's dime, should the public have to pay to access that knowledge (at around $30 per article) from a private sector journal? The text of the Research Works Act suggests that such private sector journals add value to the research that they publish in the form of peer review and editing. Note, however, that peer review for scientific journals is generally done by other scientists in the relevant field for free. Sure, the journal editors need to be able to scare up some likely candidates for peer reviewers, email them, and secure their cooperation, but the value being added in terms of peer reviewing here is added by volunteers. (Note that the only instance of peer reviewing in which I've participated where I've actually been paid for my time involved reviewing grant proposals for a federal agency. In other words, the government doesn't think peer review should be free ... but a for-profit publishing concern can help itself to free labor and claim to have added value by virtue of it.)
Maybe editing adds some value, although journal editors of private sector journals have been taken to task for favoring flashy results, and for occasionally subverting their own peer review process to get those flashy results published. But there's something like agreement that the interaction between scientists that happens in peer review (and in post-publication discussions of research findings) is what makes it scientific knowledge. That is to say, peer review is recognized as the value-adding step science could not do without.
The public is all too willing already to see public money spent funding scientific research as money wasted. If members of the public have to pay again to access research their tax dollars already paid for, they are likely to be peeved. They would not be wrong to feel like the scientific community had weaseled out of fulfilling its obligation to share the knowledge it builds for the good of the public. (Neither would they be wrong to feel like their government had fallen down on an ethical obligation to the public here, but whose expectations of their government aren't painfully low at the moment?) A rightfully angry public could mean less public funding for scientific research -- which means that there are pragmatic, as well as ethical, reasons for scientists to oppose the Research Works Act.
And, whether or not the Research Works Act becomes the law of the land in the USA, perhaps scientists' ethical obligations to share publicly funded knowledge with the public ought to make them think harder -- individually and as a professional community -- about whether submitting their articles to private sector journals, or agreeing to peer review submission for private sector journals, is really compatible with living up to these obligations. There are alternatives to these private sector journals, such as open access journals. Taking those alternatives seriously probably requires rethinking the perceived prestige of private sector journals and how metrics of that prestige come into play in decisions about hiring, promotion, and distribution of research funds, but sometimes you have to do some work (individually and as a professional community) to live up to your obligations.