The return of FRPAA
SPARC Open Access Newsletter, issue #136
August 2, 2009
by Peter Suber
On June 15, Senators John Cornyn (R-TX) and Joe Lieberman (D-CT) re-introduced the Federal Research Public Access Act (FRPAA) in the US Senate. When they first introduced the bill, in 2006, it attracted strong friends and foes but never came up for a vote.
Much has changed since 2006. If I had to pick out the developments most relevant to the bill's chances, I'd point to these six --five favoring the bill and one opposed:
1. In December 2007 Congress strengthened the NIH policy from a request to a requirement, and in April 2008 the new mandate took effect. The policy has been gaining compliance and supporters ever since.
2. In September 2008, Rep. John Conyers (D-MI) introduced a bill in the House to repeal the NIH policy --the Fair Copyright in Research Works Act (FCRWA). It didn't come up for a vote in that session, and Conyers re-introduced it in February 2009.
3. September and October 2008 saw a worldwide financial meltdown worse than any since the Great Depression. Among its many effects are to reduce access to TA literature and strengthen the case for OA.
4. In November 2008 Barack Obama was elected President and gave many signs that he supported OA, such as making Harold Varmus co-chair of the President's Council of Advisors on Science and Technology.
5. In July 2009, President Obama nominated Francis Collins to be the next Director of the NIH. If confirmed by the Senate, Colllins will be the most experienced defender of OA ever to take the reins of a federal agency. He will end the leadership vacuum at the NIH, now in its 10th month, and already has good relations with Congress. His support for FRPAA and opposition to the Conyers bill --anticipated but not yet public-- could make all the difference.
6. Sen. Lieberman is the Chairman of the Senate Committee on Homeland Security and Governmental Affairs, where the bill has been referred.
I'll elaborate on all six below. But first:
* An overview of FRPAA
FRPAA would essentially extend the NIH open-access policy across the federal government.
It wouldn't directly specify agency access policies, but require agencies to develop their own policies within the framework laid down in the bill. If it passes, agencies would have one year to develop their policies. The FRPAA framework requires them to mandate OA to agency-funded research. It doesn't stipulate the timing of deposits, but does stipulate that the deposited copies must become OA no later than six months after publication.
Like the NIH policy, FRPAA applies to the authors' peer-reviewed manuscripts, not to the published editions of their articles. Like the NIH policy, it allows consenting publishers to replace the peer-reviewed manuscripts with the published editions.
Unlike the NIH policy, FRPAA doesn't specify the OA repository in which authors much deposit their manuscripts, the way the NIH specifies PubMed Central. FRPAA leaves this decision up to the individual agencies. They could host their own repositories or make use of existing repositories, including the institutional repositories of their researchers. FRPAA only requires that the repositories meet certain conditions of OA, interoperability, and long-term preservation. Also unlike the NIH policy, which allows 12 month embargoes, FRPAA caps permissible embargoes at six months. Actually, it requires OA "as soon as practicable, but not later than 6 months after publication". For researchers employed by the federal government, and not merely funded by the federal government, FRPAA allows no embargo at all.
FRPAA would apply to all unclassified research funded in whole or part by agencies whose budgets for extramural research are $100 million/year or more. This includes 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.
Only two federal agencies already operate under OA mandates: the NIH and the Institute of Education Sciences, and both allow 12 month embargoes. FRPAA would apply to them both, by virtue of applying to their parent departments (the Department of Health and Human Services and the Department of Education). Hence, FRPAA would shorten their permissible embargoes to six months. For this reason, and for removing the embargoes on federal employee research, FRPAA would not merely expand NIH-style mandates across the federal government, but also strengthen the existing mandates.
With two small exceptions, the 2009 version of the bill is the same as the 2006 version. The new version does not apply to conference presentations and enlarges the list of Congressional committees to which federal agencies must submit reports on their OA policies.
FRPAA would mandate OA for more research literature than any other policy ever adopted or ever proposed. It would significantly increase both the corpus of OA literature and the worldwide momentum for funder OA mandates. 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.
Also see my article on the 2006 version of the bill.
* Digression on permission
The NIH policy has an elegant way to secure permission for OA or avoid copyright infringement: it requires grantees to retain the right to authorize OA through PubMed Central. If a given publisher is not willing to allow OA on the NIH's terms, then grantees must look for another publisher. The method is legally effective, obtaining permission directly from the copyright holders at a stage in the process when authors are still the copyright holders. It's also politically effective. Even publishers who oppose OA are accommodating the policy by agreeing to publish works by NIH-funded authors and acceding to the terms the authors are required by their funding contracts to demand.
FRPAA takes a different approach. It requires 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). The language is unchanged from the 2006 version, and therefore antedates the NIH approach.
What does it mean?
Two existing federal regulations give federal funding agencies a "royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work [arising from their funds] for Federal purposes, and to authorize others to do so."
The earlier of the two regulations applies only to the Department of Health and Human Services, including the NIH, 45 CFR 74.36(a) (October 2003),
The second generalizes the first and uses the same language to grant the same license to all federal agencies, 2 CFR 215.36(a) (January 2005),
When FRPAA asks agencies to "make effective use of any law or guidance relating to the creation and reservation of a Government license", it implicitly points to this federal-purpose license. When the NIH originally adopted the weaker, voluntary version of its OA policy, it noted that the first of these regulations would authorize OA through PubMed Central, even though the agency decided not to take advantage of it. "Although the NIH is relying on permission, rather than the government purpose license, as the basis for its Policy, the government purpose license is fully available as a legal authority under which manuscripts could be reproduced, published, or otherwise used for Federal purposes."
When the NIH strengthened its policy from a request to a requirement, it again chose not to use the federal-purpose license and adopted the current rights-retention method instead. Hence, the federal-purpose licenses are legally untested as the basis for federal agency OA mandates.
If that causes any concern, there are two ways to put the concern into perspective. First, the federal-purpose license is valid law and clearly covers FRPAA-style OA policies. In a public comment on the NIH policy, a publisher once argued that the federal-purpose license would not authorize what the NIH had in mind. But the precedents it cited were not on point. As the NIH observed in response: "Arguments put forth and cases cited by the commenter as support for the premise that the government purpose license could not be used as a basis for PMC to post the manuscripts are not persuasive. None of the cases address circumstances where a government agency is acting to fulfill its own statutory purposes with regard to publications resulting from its own research funding. Creation of a publicly accessible, permanent archive of NIH-funded research publications is squarely within the statutory authorities of the NIH and the NLM and clearly constitutes a Federal purpose."
Second, FRPAA supports flexibility. It allows agencies to use "any law or guidance" which "effectively" secures the needed license. For example, agencies could adopt the new NIH rights-retention method if they wanted (treating it as a "guidance" rather than a "law"). One reason they might actually do so is that the NIH method is battle-tested. Publishers who strenuously oppose the NIH policy have had more than a year to scrutinize the new, mandatory version of the policy and its method for securing permission. If they had any reason to think that it violated any aspect of copyright law, they wouldn't have to amend US copyright law to block it, as they are trying to do through the Conyers bill. They'd be in court where they'd already have a remedy. The fact that they are turning to the Conyers bill to amend the law is an acknowledgment that the NIH policy is consistent with current law.
Which raises a final question. What about the Conyers bill?
The Conyers bill (Fair Copyright in Research Works Act, H.R. 801), would amend US copyright law to block the NIH rights-retention method for securing permission for OA, and it would block any other federal agency from adopting the same method.
But the Conyers bill also blocks a range of other methods for securing permission, not just the NIH method. The bill prohibits (in 2.a.1.A.i) any "term or condition" in a federal funding contract or "in connection with a funding agreement" requiring the "transfer or license" of certain exclusive rights to the government as a condition of funding. It also prohibits (in 2.a.1.A.ii) any term or condition in or in connection with a funding contract requiring the "absence or abandonment" of an exclusive right in an "extrinsic work" (essentially any work arising from a grant and enhanced by an entity not a party to the grant, such as a publisher).
Read broadly, either of these provisions could block the federal-purpose license, even if on narrower readings neither would. Only litigation would make clear how a judge would read them.
If the Conyers bill is read to block both the NIH method and the federal-purpose license, then it would substantially block FRPAA by blocking the most obvious methods FRPAA could use to obtain permission or avoid infringement. At this point there are couple of caveats to bear in mind, apart from the question how a federal judge might interpret the Conyers language. First, the "any law or guidance" language in FRPAA allows FRPAA-covered agencies to look for other methods to secure permission. They won't be limited to the NIH method and the federal-purpose license. Second and more important, we'd only really care about whether Conyers blocked FRPAA if Congress adopted both, which is very unlikely. What if Congress adopted FRPAA as a stand-alone bill, directly and openly, but the Conyers language was buried deep within another must-pass bill? That could happen. But if it did, then the same Congress which had the will to adopt FRPAA as a stand-alone bill, directly and openly, should have the will to remove any language nullifying or impeding it buried in another bill.
The best solution, of course, is for Congress to pass FRPAA and not the Conyers bill. That scenario is very feasible, and even likely. Here's why:
* What are the bill's chances?
Senators Cornyn and Lieberman have wanted public access for publicly-funded research since at least 2006. In the meantime, the NIH strengthened its policy from a request to a requirement, the compliance rate shot up, and researchers and the public started to get used to the idea of free online access to publicly-funded medical research. The policy now has many friends in Congress and the public. Cornyn and Lieberman may have held off re-introducing the bill in 2007 and 2008, waiting to see whether the NIH policy succeeded, whether publishers sued to stop it, or whether the NIH experience suggested any important modifications to their own approach. If so, then clearly they regard the experience of the past three years as a green light to resubmit their bill, and to resubmit it without any major revisions.
At least as important: both houses of Congress required the NIH to strengthen its policy. If Congress was willing to require OA from the NIH (in December 2007), it might be willing to require OA from other federal agencies. It's not just that the NIH policy broke the ice. The NIH is the largest funding agency for non-classified research in the US federal government. In fact, it's the largest in the world. If Congress was willing to mandate OA from the largest agency of all, it should be willing to require it for a range of smaller ones, especially in light of the evidence that the NIH policy is lawful, successful, and popular. Cornyn and Lieberman are asking their colleagues to extend an idea they have already supported, and which has been vindicated by its results.
It helps that FRPAA has been referred to the Committee on Homeland Security and Governmental Affairs, where Lieberman is chairman. It helps that --by all accounts-- the Obama administration supports OA in general and the NIH policy in particular. It helps that the nominee to be the new Director of the NIH, Francis Collins, is a strong supporter of OA and "very well liked in Congress" (according to Nobel laureate David Baltimore).
It also helps that Cornyn is a conservative Republican and Lieberman a moderate to conservative independent (formerly a Democrat). They can bring out the conservative votes and Obama can bring out the liberal votes. Congressional polarization is so deep that I'm reluctant to put much weight on this possibility. But public access to unclassified publicly-funded research really does have bipartisan support. If both sides want to prove that Congressional bipartisanship is still possible, FRPAA would be an easy way to provide that long-awaited and much-needed proof.
It helps that no one can call John Cornyn or Joe Lieberman socialists --a once-popular epithet in the rhetoric of the publishing lobby.
John Conyers is a liberal Democrat, though his arguments for blocking federal OA mandates have been based on protecting the publishing industry, maximizing copyright, and fighting Congressional turf wars, not on liberal politics. Liberal policy-makers who support OA, including the Obama administration, will feel a stronger tug from FRPAA than from Conyers.
It doesn't help that it's easy to mix up "John Conyers and "John Cornyn" when speaking or typing.
It helps that FRPAA is not an appropriations bill. This has two welcome consequences. First, it sidesteps one of the procedural or parliamentary objections that animated critics of the NIH policy. Congress doesn't like to set policy through appropriations bills. It consistently violates this self-imposed rule, but it's also consistent in saying that it ought to quit. Second, the fact that FRPAA is not an appropriations bill sidesteps any objection that the bill's requirements would have to be renewed in succeeding appropriations. When Congress required the NIH to mandate OA in December 2007, it used an appropriations bill. The NIH policy would probably not have lapsed the next year if Congress had not renewed its demand, but at least the Congressional demand for it would have lapsed. To answer all doubt, Congress did have to act at least once more, and in March 2009 voted to make the NIH policy permanent. By contrast, FRPAA will only need to clear one hurdle. If it passes, it will be the law of the land until amended or repealed.
It helps that the recession is strengthening the case for OA. Even with publisher price freezes, cuts in library budgets are creating a significant loss of access to non-OA literature. 55% of ARL libraries are already coping with budgets cut and 18% more expect cuts next year.
Imagine Congress rejecting FRPAA or passing the Conyers bill at this point near the bottom of our steep economic tumble. Imagine the message to a country in recession when most libraries are slashing their budgets: "We are not going to ask any other federal agencies to provide free online access to publicly-funded research. On the contrary, we've decided to prohibit other agencies from offering free online access to publicly-funded research, and we've decided to overturn free online access policies at agencies where they already exist. We will do all we can to steer publicly-funded research, and the exclusive rights to distribute it, into the hands of private companies which will charge for access."
It should be very hard for members of Congress to vote against FRPAA during a recession, and it should be impossible to vote for the Conyers bill. If any members don't see it that way, we should be able to help them see it that way.
Congress should also find it hard to vote against OA at a time when we need an aggressive program of green research --across many agencies-- to stimulate the economy, reduce our dependence on foreign oil, and reverse global warming, and when we need OA --across many agencies-- to accelerate and amplify the impact of that green research.
Provosts should be at least as sensitive to the issues as members of Congress. After FRPAA was introduced in 2006, 132 provosts of US colleges and universities publicly endorsed it.
Even more provosts should endorse it this year. They are acutely aware of their endowment losses and budget cuts, and the consequent loss of access to subscription-based research literature. Moreover, they are aware of the long-standing university interests in sharing knowledge and regaining control of scholarly communication. Those interests should boost the number of university FRPAA endorsements, just as they are boosting the number of university OA mandates.
By all accounts, the Conyers bill is dead in the water. FRPAA may revive interest in it, since it allows the publishing lobby to play offense, not just defense. But publishers who oppose the NIH policy will also take on FRPAA directly, especially as it starts to gain traction. Of course they took on FRPAA in 2006 and would only have to reprint or update their press releases and talking points.
But the publishing lobby's anti-FRPAA rhetoric in 2006 was deeply misleading. Nine months after the first FRPAA's introduction, I wrote a set of "Twelve reminders about FRPAA" to refresh memories and counter-act the intensive lobbying campaign.
Finally, then, here's an update of my 12 reminders. We can't afford to let the publishing lobby frame the debate with false statements about what the bill would require. There are more than 12 salient provisions in the bill, but to judge from the publishers' 2006-2007 lobbying campaign, these are the ones most likely to be overlooked or distorted by opponents.
(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 provision 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 or alter peer review. It demands peer review and 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, distribution system, 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 AAP, called PRISM (Partnership for Research Integrity in Science & Medicine), actually tried it. Will publishers revive the censorship argument in the 2009 campaign?
(4) Under FRPAA, the government will not decide what gets published or 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 projects to fund. 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 apply 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.
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.
(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 peer-reviewed OA journals and unembargoed OA? (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 gives the government a non-exclusive right, which entails that publishers will not acquire the full bundle of exclusive rights they might have desired and might otherwise have acquired. Even though publishers know this well, and will protest it, they may frame their complaint as if they were "the copyright holders" to these articles, without qualification, or as if the government were expropriating their property or preventing them from enforcing the rights (rather than preventing them from acquiring all the rights they wish to acquire). They have tried all these strategies in opposing the NIH policy and supporting the Conyers bill.
(11) FRPAA does not amend copyright law. It does not seize or invalidate copyrights held by others, 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 didn't care to have access to NIH-funded research yourself, you still benefited because doctors and researchers had 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.
* If you're a US citizen, please urge your Senators and Representative to support FRPAA and oppose the Conyers bill (two separate messages). The Alliance for Taxpayer Access has made this easy with its Legislative Action Center.
Here are some links on the 2009 version of the bill:
FRPAA, 2009 version
Text of bill, 2009 version
Cornyn statement when introducing FRPAA
Press Release from Sen. Cornyn, June 25, 2009.
Press release from the Alliance for Taxpayer Access, June 25, 2009.
Statement on FRPAA from Senator Lieberman in the Congressional Record, June 26, 2009.
Mike Rossner, Executive Director of Rockefeller University Press, released an open letter to Sen. Charles Schumer urging him to support of FRPAA, June 29, 2009.
Access for Tax Funded Research Bill in Senate, GenomeWeb Daily News, June 29, 2009.
Ten library associations and public-interest organizations released an open letter in support of FRPAA, July 2, 2009.
Ten library associations and public-interest organizations released open letters of thanks to Senators John Cornyn and Joe Lieberman for re-introducing FRPAA, July 2, 2009.
Peter Suber, FRPAA re-introduced in the Senate, Public Knowledge Blog, July 2, 2009.
Andrew Richard Albanese, Bill would expand open access mandate for publicly funded research beyond NIH requirements, Library Journal, July 2, 2009.
Andrew Richard Albanese, Public Access Bill Reintroduced, Publishers Weekly, July 6, 2009.
FAQ on FRPAA from the Alliance for Taxpayer Access, July 9, 2009.
Overview of FRPAA from the ATA, July 9, 2009.
Summary of FRPAA from the ATA, July 9, 2009.
Kevin Smith, Iím just a bill, Scholarly Communications @ Duke, July 12, 2009.
Bob Roehr, US legislation seeks to expand open access to all government funded research, BMJ, July 17, 2009.
Jenifer Reinhardt, Bill aims to provide taxpayers access to publicly funded research, OhMyGov, July 21, 2009.
Knowledge Ecology International, IP Justice, Essential Action, and the Electronic Frontier Foundation released an open letter thanking Senators Cornyn and Lieberman for reintroducing FRPAA, July 21, 2009.
To see the FRPAA news stories and blog posts to date, and track new ones, monitor the "oa.frpaa" tag library from the OA tracking project,
Also see the page on FRPAA from the Alliance for Taxpayer Access.
Here are some links on the 2006 version of the bill:
FRPAA, 2006 version
Text of bill, 2006 version
My two articles on the 2006 version of the bill,
http://www.earlham.edu/~peters/fos/newsletter/05-02-06.htm#frpaa longer (May 2006)
http://www.earlham.edu/~peters/fos/newsletter/02-02-07.htm#frpaa shorter (Feb 2007)
132 Provosts who supported the 2006 version of FRPAA
Supporters of FRPAA, collected by the Alliance for Taxpayer Access
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