FRPAA introduced in the US House of RepresentativesSix Representatives from two parties introduced the Federal Research Public Access Act (FRPAA, H.R. 5037) in the House of Representatives on April 15, 2010. The bill would essentially extend the NIH mandate across all the major funding agencies in the US federal government.
SPARC Open Access Newsletter, issue #145
May 2, 2010
by Peter Suber
FRPAA is already pending in the Senate and now has a serious shot at adoption. The sponsors want OA, not just a trial balloon or a symbolic flag in the ground. Mike Doyle, the leading sponsor of the House version, said in a press conference, "I hope that we can move this bill through Congress before the end of the year."
FRPAA mandates green OA for unclassified research funded in whole or part by the largest federal funding agencies. The cutoff is whether an agency spends $100 million/year or more on extramural research. This year that covers 11 agencies: the Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Transportation, Environmental Protection Agency, National Aeronautics and Space Administration, and the National Science Foundation.
FRPAA would liberate more research literature than any other policy ever proposed in any country. If adopted, it would do more for the the worldwide momentum of OA than any step in our history and more than any step on the horizon. As I wrote last summer about the Senate version, "It would come as close as any single step could to changing the default for the way we disseminate new scientific work, especially publicly-funded work."
While the scope of the bill depends on agency budgets for extramural research (research by agency grantees as opposed to agency employees), the OA mandate in the bill applies to intramural research as well (research by employees).
Apart from its wider scope, FRPAA differs from the NIH policy in a four respects:
(1) It would shorten the maximum permissible embargo to six months.
(2) It would require immediate OA, or eliminate embargoes entirely, for intramural research.
(3) It would offer more flexibility about the OA repositories in which to deposit work. Agencies could host their own repositories, as the NIH does, or ask grantees to deposit into third-party repositories, such as their own institutional repositories, provided the repositories met certain conditions of OA, interoperability, and long-term preservation.
(4) It would offer more flexibility on how to secure permission for the mandated OA, or how to avoid copyright infringement. It supports the battle-tested NIH method but opens the door to additional methods. I wrote more about these in my article on the 2009 introduction of the Senate version of the bill and won't repeat the details here. (The same article discusses the interaction of FRPAA and the Conyers bill, which would repeal the NIH method for securing permission.)
Publishers who continue to assert that FRPAA and the NIH policy are "inconsistent with copyright law" are peddling deliberate misinformation, like the "death panels" lie in the US healthcare debate. If the NIH policy violated copyright, publishers who oppose it would be in court suing for infringement; instead they are backing a bill to amend copyright law to outlaw the lawful NIH policy. For my full response to the copyright FUD, see my article from October 2008.
Just as Congress asked NIH to develop an OA mandate, without dictating the details, FRPAA asks agencies to come up with their own policies within the general guidelines laid down in the bill. It's not a one-size-fits-all solution and agencies are free to differ on the details. They would have one year from the bill's passage to frame their own policies.
Two federal agencies already operate under OA mandates: the NIH and the Institute of Education Sciences. Both allow 12 month embargoes and FRPAA would trim them back to six. In that sense, FRPAA not only extends but strengthens the existing federal mandates.
John Cornyn (R-TX) and Joe Lieberman (D-CT) first introduced FRPAA in the Senate in May 2006, when it was never matched by a House version and never came up for a vote. Cornyn and Lieberman re-introduced it early in the current session of Congress, June 2009, and now for the first time that the bill is on the table both the House and the Senate. Because the House and Senate versions are identical, no reconciliation would be needed if both passed. We've never had such a good shot at passing this watershed legislation.
The bill has been referred to the House Committee on Oversight and Government Reform, where Ed Towns (D-NY) is Chair.
THOMAS pages on the bill:
--In the Senate (S.1373)
--In the House (H.R. 5037)
Govtrack pages on the bill:
--In the Senate (S.1373)
--In the House (H.R. 5037)
Announcement from the Alliance for Taxpayer Access
ATA's call to action (a web form for US citizens to contact their representatives)
SPARC's updated FRPAA FAQ for University Administrators and Faculty.
The best single place to find information on FRPAA is the ATA home page on the bill.
The best way to follow news about FRPAA is the the "oa.frpaa" feed and tag library from the OA Tracking Project (OATP).
My previous SOAN articles:
--On the first introduction of FRPAA in the Senate, May 2006
--Twelve reminders about FRPAA, February 2007 (updated below)
--On the reintroduction of FRPAA in the Senate, August 2009
* One of the most important aspects of the House bill is its bipartisan support. We got our first glimpse of this in the Senate bill. John Cornyn is a conservative Republican and Joe Liebarman is a moderate to conservative independent (formerly a Democrat). The House bill has original sponsors from both parties and both ends of the political spectrum:
Rep. Rick Boucher (D-VA)
Rep. Mike Doyle (D-PA)
Rep. Gregg Harper (R-MS)
Rep. Dana Rohrabacher (R-CA)
Rep. Debbie Wasserman Schultz (D-FL)
Rep. Henry Waxman (D-CA)
Last week the bill gained two new co-sponsors:
Rep. Mike Capuano (D-MA)
Rep. Barney Frank (D-MA)
Bipartisan support matters. It bodes well for the bill's political survival and adoption. It belies the publishing lobby's attempt to label government OA mandates as "socialist". It isolates the publishing lobby as a special interest opposing the public interest. And it shows that OA mandates fall within the traditional common ground of the two parties: open government, fairness and accountability to taxpayers, and a commitment to spending public funds in the public interest.
For other recent evidence of this common ground, note that Sen. Patrick Leahy (D-VT) and FRPAA-supporter John Cornyn (R-TX) are co-sponsoring a new bill in the Senate to improve government responses to requests under the Freedom of Information Act.
For evidence outside the US, note how liberals and conservatives in the UK have converged on OA for public sector information. They not only agree to support it; they both issued manifestoes about it in March.
--The Labour manifesto
--The Conservative manifesto
The Labour and Conservative agreement on OA for PSI was just topped by the centrist Liberal Democrat Manifesto for 2010, which commits the party to "Ensure that all state-funded research, including clinical trials, is publicly accessible and that the results are published and subject to peer review...."
For Americans, the bipartisan support for FRPAA is a long-awaited reminder that common ground even exists. It won't end partisan hostility, but it's a promising step toward the end of a long reign of bitter polarization in Washington, when there seemed to be no common ground or at least no willingness to support legislation within that common ground if the other side was already supporting it. Yes, we've seen politicians flip-flop against positions they endorsed in order to avoid agreeing with the other party. We've seen it not rarely, but repeatedly. We've seen it not just on minor matters where party unity might matter more than the policy interests at stake, but on the most important issues facing the country. (And yes, this problem is almost entirely a Republican one.)
In the case of FRPAA, support from conservative Republicans hasn't scared away liberals, and support from liberal Democrats, including President Obama, hasn't scared away conservatives. In healthy times that pattern would not deserve special mention. But that's the point here; we haven't been living in politically healthy times. The bipartisan support for FRPAA is one sign that the national fever may be breaking.
The two parties already support FRPAA and the principles behind it. I hope they succeed in actually passing it, of course. But I also hope they see it as an opportunity to prove to the American people that bipartisan cooperation is possible, and I hope the American people will demand the proof.
* The House introduction of FRPAA comes while the White House is considering its own OA initiative. Late last year (December 9, 2009) the White House Office of Science and Technology Policy (OSTP) called for public comments on "enhancing public access to archived publications resulting from research funded by Federal science and technology agencies." Comments were originally due on January 7, 2010, but the deadline was extended until January 21, 2010.
The comments are available here.
FYI, my comment is in Collection #3,
OSTP is still digesting the comments and we don't know what it will recommmend. One breakthrough possibility is an executive order to do roughly what FRPAA would do. At least the bicameral push for FRPAA in Congress doesn't make that less likely. On the contrary, Congress and the White House could see the two initiatives as complementary. If we had a strong OA policy from the White House, then we'd still need legislation like FRPAA to make it permanent, since an executive order could be repealed by the next President. If we had momentum for a strong OA policy from Congress, then we'd still need an executive order, because it would deliver the strong OA policy faster. President Obama could act as soon as OSTP finishes digesting the public comments. He could act this month, while Congress is occupied with financial reform, climate change, and immigration policy.
A White House policy could be stronger or weaker than FRPAA. It could be stronger by applying to more than the 11 largest federal agencies. It could ask agencies to pay reasonable publication fees at fee-based OA journals when grantees choose to publish in such journals, and it could require libre OA when agencies pay any part of the cost of publication. It could be weaker by allowing embargoes longer than six months or loopholes for unwilling publishers. (There's no evidence that the White House is leaning for or against any of these possibilities; I mention them only to show how the White House policy could be stronger or weaker than FRPAA.)
To follow the OSTP's announcements on this and other policy initiatives, see the OSTP blog.
For a sign that OSTP is friendly to OA, recall that in June 2008 the same OSTP issued guidelines on the release of scientific data from federally funded research projects. The guidelines essentially mandate open data for intramural agency research. They also ask 15 major funding agencies to write policies in conformity with the guidelines.
If you want to quibble, this OA data mandate wasn't OSTP's idea; Congress required OSTP develop the guidelines in Section 1009 of the August 2007 America COMPETES Act. Hence if you wanted, you could see this as as a sign of legislative-branch support more than executive-branch support. But that's good news too, for FRPAA.
* Nine months after the first FRPAA's introduction in 2006, I wrote a set of "Twelve reminders about FRPAA" to refresh memories and counteract the intensive lobbying campaign. I updated the list in August 2009 and now update it again.
Past experience suggests that these are the 12 points that opponents are most likely to distort or fail to mention.
(1) FRPAA mandates deposit in OA repositories, not submission to OA journals. It focuses on green OA and ignores gold OA.
(2) It does not mandate that subscription-based journals convert to OA. It does not tell any kind of journals what their access policies or business models ought to be. It regulates grantees, not publishers.
(3) It only applies to articles that have already been published in peer-reviewed journals.
This point has three important consequences. First, it means that FRPAA doesn't apply to unpublished articles or research notes. Therefore, it doesn't force premature disclosure from researchers who make patentable discoveries. The policy kicks in only after researchers voluntarily decide to publish.
Second, the policy does not bypass peer review. On the contrary, it demands peer review and merely widens access to peer-reviewed research.
Third, it's about archiving copies, not manipulating originals. Hence, the possibility of government censorship doesn't come up. The originals will be in libraries and independent web sites around the world, wherever the publisher's market reach and preservation back-ups have managed to place them. If some of the published originals are not in fact copied for OA archiving, or if some copies are removed after deposit, that would be regrettable (and violate the policy). But it would not affect the originals at all. It would not delete them from libraries and independent web sites around the world, shrink the range of their distribution, change their access policies, or reduce their visibility. To use the word "censorship" to describe the incomplete copying of literature already published, distributed, stored, curated, and preserved in independent locations is incoherent newspeak. Or (to play along), if occasional non-archiving really is a kind of censorship, then publishers who want to defeat an OA archiving mandate like FRPAA want systematic non-archiving and mass censorship.
Historical note: Hard as it is to believe, in the wake of the 2006 version of FRPAA a PR consultant advised the Association of American Publishers (AAP), Elsevier, and Wiley to argue that "Public access equals government censorship", and a short-lived organization created by the Association of American Publishers, called PRISM (Partnership for Research Integrity in Science & Medicine), actually tried it.
(4) Under FRPAA, the government will not tell journals what to publish. The government will not conduct peer review or tell journals how to conduct peer review. It will not become a publisher where it wasn't already a publisher. It will not "nationalize science" (whatever that means).
Government funding agencies will continue to decide what research they will fund. Because they control significant funds, that's a significant power. But FRPAA didn't create it and defeating FRPAA won't repeal it.
(5) FRPAA mandates deposit in an OA repository, but it does not limit deposits to a single repository.
This is true in two senses. First, FRPAA lets federal funding agencies host their own repositories or point grantees to suitable external repositories. Second, even after agencies make their choice, and authors deposit their work in the designated repository, authors are not limited to that repository and may deposit their work in any other repositories as well. The first point means that the designated repositories won't always be controlled by the government. The second point means that, even when they are, authors may deposit in independent repositories without restraint. The policy opens new access doors without closing any old ones.
(6) FRPAA does not mandate OA to the published edition of an article. It applies only to the final version of the author's peer-reviewed manuscript --basically, the version approved by peer review but not yet copy-edited. This is a concession to publishers to preserve library incentives to subscribe.
(7) FRPAA gives publishers the option to replace the author's manuscript in the designated repository with the final published version. This is a solution for publishers who worry about the circulation of multiple versions.
(8) FRPAA does not mandate OA immediately upon publication, but permits embargoes up to six months. This is a concession to publishers and a compromise with the public interest in immediate public access.
For the first six months after publication, publishers will have exclusive distribution rights to both the published edition and (at their choice) the final version of the author's peer-reviewed manuscript. After six months, publishers will still have exclusive distribution rights to the published edition, and the only time limit on that exclusivity is the duration of copyright itself (the life of the author plus 70 years). Of course, publishers may voluntarily waive some of these exclusive rights by permitting authors to self-archive their postprints, and today more than 60% of surveyed publishers do just that.
The NIH policy allows an embargo of up to 12 months. But the NIH is the outlier here, not FRPAA. Even if the NIH's own field of medicine, the NIH is the only OA-mandating medical research funder in the world allowing embargoes longer than six months. Every other one without exception limits embargoes to six months: the Arthritis Research Campaign (UK), British Heart Foundation, Canadian Breast Cancer Research Alliance, Canadian Health Services Research Foundation, Canadian Institutes of Health Research, European Research Council, Cancer Research UK, Chief Scientist Office of the Scottish Executive Health Department, Department of Health (UK), Fonds de la recherche en santé du Québec (Canada), Fund to Promote Scientific Research (Austria), Genome Canada, Howard Hughes Medical Institute, Joint Information Systems Committee (UK), Michael Smith Foundation for Health Research (Canada), National Cancer Institute of Canada, National Institute for Health Research (UK), Vetenskapsrådet (Swedish Research Council, Sweden), and the Wellcome Trust (UK).
(9) FRPAA does not provide funds for publication fees at fee-based OA journals.
There's a healthy ongoing debate about whether funding agencies should offer to pay these fees. Are they an unaffordable diversion of funds from research or a needed investment in unembargoed OA and peer-reviewed OA journals? (There are publishers and OA proponents on each side of this question.) The debate should continue, but don't let it confuse the issues. Objections to the practice are not objections to FRPAA.
(10) FRPAA does not depend on publisher consent or cooperation. It will rely --most likely-- on a special license, already provided by federal law, authorizing federal funding agencies to disseminate the results of the research they fund. However, FRPAA-covered agencies could also rely on the NIH rights-retention method or other methods still to be devised.
The federal-purpose license and the NIH rights-retention method both give the government a non-exclusive right to disseminate OA copies of the articles. Both methods prevent publishers from acquiring the full bundle of exclusive rights they might have desired and might otherwise have acquired. Both methods require divided ownership. Publishers know this well, but they have track record of misrepresenting it in their public protests. They frame their complaint as if they were "the copyright holders" to these articles, without qualification. They often speak as if the government were expropriating their property or preventing them from enforcing rights they possess, as opposed to preventing them from acquiring rights they wish to possess.
(11) FRPAA does not amend copyright law. It does not seize or invalidate copyrights, prevent government-funded researchers from holding copyrights on their work, prevent them from transferring rights to publishers, or prevent publishers from enforcing the rights they acquire from authors.
(12) Finally, FRPAA makes no assumptions about how many members of the lay public are interested in reading peer-reviewed scientific research articles. It doesn't matter that some members of the lay public won't care to read the articles that will become OA, or won't understand them, just as it doesn't matter that some drivers won't care to drive on a given stretch of publicly-funded road. If you don't care to have access to NIH-funded research yourself, you still benefit because doctors and researchers have access. Likewise, FRPAA will benefit everyone who cares to read this research, and benefit everyone else indirectly by benefiting researchers directly. The purpose is not to widen access for professionals alone, or lay readers alone, but to widen access for everyone who can make use of publicly-funded research.
* What can you do to help
First, send thanks to the eight co-sponsors in the House. If you don't live in their districts, you probably won't be able to email them through their official email addresses. But you can adapt the prepared letter, print it, and fax it.
Second, if you're a US citizen, ask your Representative to become a co-sponsor of FRPAA.
Third, talk to your academic colleagues about the bill and get their support.
Finally, get your institution to support the bill.
To help persuade your institution:
--See last week's open letter in support of FRPAA from the leaders of 27 US universities.
--See SPARC's list of university provosts and presidents who support the 2009-2010 version of FRPAA (109 signatures; last updated April 23, 2010).
--See SPARC's list university provosts and presidents who supported the 2006 Senate version of FRPAA (132 signatures; last updated January 8, 2007).
--See last fall's the open letter from 41 Nobel laureates supporting the Senate version of FRPAA.
* Here are some recent news and comment on the House introduction of the bill.
New Hope for Open Access, Insurance News Net, April 15, 2010.
Federal Research Public Access Act introduced in US House of Representatives, KnowledgeSpeak, April 16, 2010.
David Bruggeman, Lieberman’s Open Access Bill Gets Some Company, Pasco Phronesis, April 18, 2010.
House Bill Proposes a Federal Open-Access Policy, GenomeWeb Daily News, April 19, 2010.
Cecelia Kang, A bill to make federal research available online, Washington Post, April 19, 2010.
Kim Hart, House bill would open up taxpayer-funded research, The Hill, April 19, 2010.
Andrew Albanese, U.S. Congress Moves On Open Public Access Bill, Publishers Weekly, April 19, 2010.
Bob Grant, FRPAA's back! The Scientist, April 20, 2010.
One Step Closer to Getting What You Pay For, ARL Policy Notes, April 20, 2010.
Barbara Kirsop, FRPAA - another small step for mankind? Electronic Publishing Trust for Development, April 20, 2010.
David Wiley, H.R. 5037 (his letter to his Representative in support of FRPAA), Iterating Toward Openness, April 20, 2010.
Paul Revere, It's b-a-a-a-c-k. And I'm glad, Effect Measure, April 21, 2010.
Congressman Presses for Broad Open-Access Bill, Apr 21, 2010, GenomeWeb Daily News
Josh Hadro, Bill would require open access to federally funded research after six months, Library Journal, April 22, 2010.
Philip Davis, The Federal Research Public Access Act (FRPAA), Science, and the Public Good, The Scholarly Kitchen, April 22, 2010.
An Open Letter to the Higher Education Community, April 23, 2010. A letter endorsing FRPAA signed by the leaders of 27 US universities.
The Association of American Publishers and DC Principles Coalition released their April 29 letter to the House Committee on Oversight & Government Reform, opposing FRPAA.
David Wiley, Response to the US Chamber of Commerce on H.R. 5037, Iterating Toward Openness, April 30, 2010. (Wiley quotes from and responds to a Chamber of Commerce letter opposing FRPAA; the letter is apparently not yet online.)
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