An open letter to the next President of the United States
SPARC Open Access Newsletter, issue #127
November 2, 2008
by Peter Suber

Dear Senators McCain and Obama,

You both have plans and policies to solve the grave problems facing the nation.  I'm writing to add one tool to your toolkit:  "open access" (OA) to publicly-funded research.  A national commitment to make the non-classified results of federally-funded research freely available online would be good for research, good for the economy, good for taxpayers, and good for your own high-priority plans and policies.

Both of you have taken positions close to open access.  In June 2006, Senator McCain called for federal policies "to encourage open exchange of data and results of research conducted by agency scientists" (more to prevent Bush-style censorship of government scientists than provide free online access), and in December 2007 he called for OA to the publicly-funded reports from the Congressional Research Service.

In May 2007, Senator Obama and several other Democratic candidates called for OA to the televised debates of the Democratic primary election, and in November 2007 he called for greater public access to environmental data.

More recently, both of you supported OA to the televised footage of the presidential debates.  Senator McCain called for fair-use scrutiny before executing takedown requests for YouTube videos.  Senator Obama appointed Harold Varmus his chief science advisor.  Varmus is a 1989 Nobel laureate, previous director of the NIH, co-founder of the Public Library of Science, and major figure in the worldwide OA movement.

Both of you lean in the direction of OA, but neither of you has discussed existing or expanded federal policies to require OA for publicly-funded research.  My concern is not that you will oppose those policies but that you may overlook opportunities for integrating OA with your own policy priorities.  I'm writing to show how OA would complement the plans and policies you already have in mind, and to show the need to protect it from special interests lobbying to block it.

* Both of you recognize the menacing problems of global warming, our dependence on foreign oil, and our deepening recession.  When crises occur together, they sometimes carry the added complication that steps to mitigate one would only aggravate another.  But both of you recognize that our climate crisis, oil crisis, and economic crisis have the opposite property, and that at least one common strategy would make progress against all of them at once (even if it turns out to be just a small part of the overall solution).  Both of you recognize that clean energy, energy independence, and economic recovery would all benefit from an aggressive national commitment to green research, green technology, and green jobs.  In different ways, you have both described a national green energy program to create clean energy options to reduce our carbon footprint, domestic energy options to reduce our dependence on foreign oil, and jobs and exports in an expanding new economic sector to restore our financial health and stability.

To make headway on green energy we will have to pursue a bold program of green research.  For example, we'll have to research clean and renewable sources of power, including battery power, biofuels, flex fuels, geothermal power, hydroelectric power, hydrogen fuel cells, natural gas, nuclear power, solar power, tidal power, wave power, and wind power.  We'll have to research green solutions beyond new sources of power, such as anaerobic digestion, carbon capture, conservation, geoengineering, greenhouse gases, mass transit, recycling, and reforestation.  We'll have to research low-impact technologies of all kinds, from light bulbs and microprocessors to automobiles and assembly lines, new increments of efficiency for all forms of energy production and use, and the economic and environmental impacts of all the above. 

Whatever the details, significant advances in green energy will require significant research, and a significant part of that research, like all scientific research, will have to be funded by the federal government.

Here's where OA comes in:  OA will accelerate that research, make it more useful, and bring it within reach of everyone who can apply it or build on it.  As the primary funder of green research, the federal government will be in a unique position to amplify its impact by making it OA.  OA is the fourth step in a coordinated strategy of identifying research priorities, funding the research, undertaking the research, and disseminating the results.

* A common assumption of previous administrations has been that publicly-funded research, once completed, automatically enters an effective dissemination system and quickly finds its way to all those who can make use of it.  The assumption is false.  In the age of print, the system was very ineffective, but at least publicly-funded research was disseminated about as effectively as the system allowed.  Not every library could subscribe to every journal, and access gaps were widespread.  But the system failures were excusable:  print publishing was expensive, prices were reasonable (until the mid-1970s when they started to rise faster than inflation), and gaps were unavoidable. 

In the age of the internet, however, the assumption is still false, and the system failures are no longer excusable.  The assumption is not false because publishers haven't moved online or because researchers don't have connectivity.  It's false because most online journals still use the business models of print journals and because they still raise their prices several times faster than inflation.  Print journals left access gaps when libraries couldn't afford them, and most online journals leave access gaps for the same reason.  In fact, because the volume of published literature is growing so fast, and because the prices of scholarly journals are growing so much faster than library budgets, the percentage of new research literature accessible to the average researcher or library declines every year. 

We can't afford to continue acting on this false assumption.  More than ever the nation depends on the results of new research, and more than ever it depends on fixing our dysfunctional research dissemination system. 

Non-OA publishers have their reasons for not changing business models.  But the government has its reasons for providing public access to publicly-funded research, and it can act on its own without waiting for publishers to change their business models and without compelling them to change. 

OA is a low-cost, high-yield supplement to the current system, and your administration can implement it without violating copyrights, amending copyright law, bypassing peer review, or regulating publishers.  Policies to guarantee it have been around long enough to refine and debug.  One of the most successful examples anywhere is at the US National Institutes of Health (NIH).

* In December 2007 an appropriations bill passed by both houses of Congress and signed by the President instructed the NIH to require OA for NIH-funded research, strengthening a weaker version of the same policy in effect since May 2005.  When NIH grantees publish the results of their research, the new policy requires them to deposit copies of their peer-reviewed manuscripts in PubMed Central, an OA repository run by the agency.  The policy requires deposit at the time the articles are accepted for publication, but allows an embargo period of up to 12 months after publication before PMC releases its OA copy. 

Some publishers strongly oppose the NIH policy and lobby hard against it.  Many more publishers have gracefully accommodated the policy, but there's no doubt that the resistance of the publishers behind the anti-OA lobbying campaign is more visible than the adaptation of the rest.  There's also no doubt that the anti-OA lobbying has been marked by distortion and misinformation.  The publishing lobby has argued that OA is a form of censorship.  It has argued that risks for conventional, non-OA publishers are risks for peer review itself --although there are now more than 3,700 peer-reviewed OA journals, with more every week, and the money to support OA at every peer-reviewed journal is tied up in subscriptions to non-OA journals.  It has claimed that the NIH policy forces publishers to "surrender" their articles --although the policy is about archiving copies, not manipulating originals, it doesn't apply to the published editions of articles, it doesn't violate, seize, or nullify any of their rights, and publishers have their eyes open when they agree to publish works by authors bound by an NIH funding contract.

Above all, the publishing lobby has argued that the NIH policy violates copyright.  The policy is entirely lawful, but the publishing lobby keeps playing the copyright card because it knows it would be a legal trump.  When it got a hearing before the House Judiciary Committee in September, it couldn't point to any instances of actual infringement and wisely refrained even from claiming infringement.

Longer response to the censorship argument
Longer response to the peer review argument
Longer response to the "surrender" and copyright arguments

Let me digress for moment on the copyright objection.  It will shed light on the publishing lobby's tactics and show the sense in which the NIH policy is not only lawful, but battle-tested and ready to extend to other federal funding agencies.

All sides understand that if publishers held full copyright in these research articles, then the NIH would need publisher permission before providing OA to its own copies.  To get around this problem, the NIH policy requires grantees not to transfer full copyright to publishers.  NIH-funded researchers retain the right to authorize OA.  They may transfer all their other rights to a publisher, and typically do.  OA through the NIH is authorized by the copyright holders, and publishers only acquire a package of rights subject to that prior authorization.  When NIH-funded authors approach publishers, they don't merely ask "will you publish my article?" but "will you publish it under these terms?"  It's a business proposition which publishers may take or leave, and publishers are virtually unanimous in taking it. 

When publishers say that the NIH policy violates their rights, they are being careless with truth.  Authors have the right to transfer all, some, or none of their rights to publishers.  Publishers may have gotten used to the custom in which authors transferred all their rights, and may prefer it, but they can't pretend that it's an entitlement or a requirement of copyright law.  Their real complaint is that authors are lawfully exercising their own rights under copyright law, and that publishers now acquire fewer rights than they want to acquire and fewer than they used to acquire.  Their real complaint is that their chief supplier is offering a critical resource on less attractive terms than in the past, though still free of charge. 

It does not violate publisher rights for authors to drive a harder bargain and transfer less than the full bundle of copyright.  Nor does it violate publisher rights for authors to use the right they retain to authorize OA.  Publishers have an undiminished right to refuse to publish work by NIH-funded authors, and an undiminished ability to hold and exercise the rights they do acquire from authors.

If the NIH policy triggered actual infringement, publishers would say so.  They would go to court, where they have a remedy under existing law.  But instead they have gone to Congress to change the law, creating at once a threat to a valuable policy and proof that the NIH policy is consistent with current copyright law.

* You will be under immense pressure to tilt our unbalanced copyright law further toward the content industry, especially as the trend continues for US exports to depend less on manufactured goods and more on intellectual property.  The trend is real and you may even want to work with the content industry to promote or maximize those exports.  But you can support copyright exports without giving up on balance in copyright law or favoring publishers at the expense of authors and readers. 

You can support the legitimate interests of this legitimate industry without harming science and innovation.  But to do so, you must see how scientific research differs from music, movies, and novels.  Science thrives when we lift restrictions on access and use, and suffers when we tighten them, the opposite of royalty-driven intellectual property.  Scholarly journals don't pay authors, who can therefore consent to OA without losing revenue.  Universities pay scholars in part to free them from the market and free them to publish what they find to be true and important, even if only handful of people in the whole world care to read it or are in a position to understand it.  Universities reward scholars for their research publications, creating incentives to publish entirely unrelated to the market value of their publications. 

Research articles differ sharply from other categories of copyrighted content, where authors are paid by publishers, where author rewards are proportional to sales, where the temporary monopoly of copyright is an essential incentive for author creativity, and where the publisher's interest in limiting circulation to paying customers also serves the author's interest.

To advance the interests of the larger copyright industry as if academic publishing were just like music, movies, and novels would have the perverse effect of locking up knowledge, reducing its impact, and slowing research.  OA, by contrast, accelerates research and amplifies its impact, not only for researchers but for the entire economy. 

As John Houghton and Peter Sheehan argued in 2006:  "With the United State's GERD [Gross Expenditure on Research and Development] at USD 312.5 billion and assuming social returns to R&D of 50%, a 5% increase in access and efficiency [their conservative estimate] would have been worth USD 16 billion."

OA is an investment in the national economy, not just a straight path to research productivity.  It lowers the barriers to new technologies, new manufacturing processes, new goods and services, and informed decision-making in every area from healthcare to environmental protection, economic regulation, and public safety.  To date publishers have produced no evidence that OA reduces their revenues.  But even if they produce such evidence in years to come, the losses must be measured against the gains to health, manufacturing, commerce, and GDP.  Even if Coolidge was right that the nation's business is business, it doesn't follow that we should subordinate the public interest in science and research to the narrow interests of academic journal publishers, who wish to be the sole outlet for publicly-funded research and limit its circulation with skyrocketing prices.

The next president will inherit a miserable, failing economy and a magnificent, succeeding public access policy.  It would be tragic to let preoccupation with the former hide the ways in which the latter could help the cause.

* One priority for the new administration should be to protect the NIH policy from the special interests trying to overturn it.  Part of that protection is simply to be aware of the policy and its value, and to be aware of the misrepresentations and special pleading used by the publishing lobby to oppose it.

A more concrete part of that protection is to appoint a worthy successor to Dr. Elias Zerhouni, who stepped down in October as the Director of the NIH.  Zerhouni was a strong friend of OA, and saw the agency through the turbulent transition period in which the OA policy was drafted, vetted, adopted, refined, and defended.  The next director will be critical for the future of OA at the NIH.  It will be one of your most important early appointments. 

We need the NIH policy both for its direct impact on medical research and healthcare, and for its indirect impact on access policies at other federal agencies.  If the publishing lobby succeeds in killing the policy, the hope of extending it to the Department of Energy, National Science Foundation, Environmental Protection Agency, National Oceanic and Atmospheric Administration, and other agencies central to the national green energy program, would die with it.  A bill now before Congress to kill the policy would expressly block similar policies at every federal agency.

* After securing the NIH policy, the next priority for OA should be to generalize the policy across the federal government.  Without this, our dysfunctional research dissemination system will thwart even a fine-tuned and well-funded green research program.

If the country reaffirms the NIH policy in the face of the publishing lobby, then it will reaffirm the principle of public access to publicly-funded research which it endorsed in January 2004 when it joined 33 other nations in signing the Organisation for Economic Co-operation and Development (OECD) Declaration on Access to Research Data From Public Funding.,2340,en_2649_34487_25998799_1_1_1_1,00.html

Apart from adopting the NIH policy, however, the US has not lived up to the principle it has endorsed. 

We need to extend NIH-like policies first to the agencies participating in the green energy program and then to all agencies funding non-classified research.  One model for this is the Federal Research Public Access Act (FRPAA, S.2695), introduced in the Senate by John Cornyn (R-TX) in May 2006.  The FRPAA approach was to require OA at all federal agencies spending more than $100 million/year in extramural research or research conducted by non-employees.  At the time, 11 agencies fell into that category:  the Environmental Protection Agency, National Aeronautics and Space Administration, National Science Foundation, and the cabinet-level Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, and Transportation.  FRPAA not only generalized the NIH policy, but improved upon it by capping the permissible embargo at six months.

FRPAA allowed different agencies to adopt different policies, provided they conform to common guidelines laid down in the bill.  But even if other agencies choose to diverge in small ways from the NIH policy, they will have much to learn from the failings of the weak and ineffectual NIH policy before Congress stepped in to strengthen it last year.  Other agencies should understand what the NIH policy now requires, how and why it differs from the earlier, weaker version of the policy, how it's implemented, why it's lawful, and what tactics to expect from the publishing lobby.  They could even, if they wished, adopt the NIH's repository software, which is now portable and ready for use elsewhere.

* In short, it's not enough to fund the right research in the right amounts.  We must make sure it reaches everyone who could apply it, build on it, or use it to create useful technologies or new jobs and businesses.  A national interest in green research is inseparable from a national interest in access to that research. 

We can't afford to waste even part of our investment in new knowledge by locking that knowledge behind a price wall, any more than we can afford to ship food to a disaster zone and lock it in a warehouse near the tarmac.

The financial crisis and $700 billion bailout will make it very difficult to *increase* our investment in research, despite the compelling case to do so.  But whether we increase research budgets, hold steady, or even cut them back, it will be more important than ever to maximize at least the *return* on our large national investment in research.  That is the special job of OA.  By making research available to everyone who can use it, OA maximizes the usefulness of research.  By making research available to everyone with an internet connection, OA maximizes the reach and distribution of research.  OA maximizes the chances that promising research will be noticed, confirmed, connected, extended, and translated into practical applications. 

We could evaluate the policy of OA for publicly-funded research on its own, apart from temporary national needs and interests.  OA does very well under that sort of scrutiny, satisfying important criteria such as fairness to taxpayers, open government, fiscal responsibility, and preventing private interests from creating artificial scarcity to a public good.  But at the same it needlessly truncates the supporting argument.  Even if OA is a taxpayer's right, it's also a prudent means to make research more rapid and effective.  It makes useful research more useful, and its value and urgency depend on the value and urgency of research itself.  The more knowledge matters, the more it matters to make that knowledge OA.  For that reason, we must also evaluate OA as an impact amplifier for the research projects we have identified as national priorities.  OA isn't just a good idea on its own, regardless of temporary needs and interests.  It's a good idea entailed by the good reasons to undertake a national program of green research in pursuit of green energy, green technology, and green jobs.

* Here are some related articles, studies, and resources.

John McCain's campaign home page

Barack Obama's campaign home page

Google "In Quotes".  A five-year compendium of quotations from major US political figures, allowing users to compare what two any two of them, such as McCain and Obama, have said on a given topic.
These terms bring up quotations from both candidates:  climate change, conservation, energy, energy independence, global warming, greenhouse gases, greenhouse gas emissions, infrastructure, nuclear, research, solar, wind.  These terms bring up quotations from one candidate but not both:  clean energy, fuel-efficient, fuel efficiency, green jobs, green technology, National Institutes of Health, NIH, renewable energy, research budgets.  These terms bring up quotations from neither candidate:  federally funded, geothermal, open access, public access, publicly funded, research funds, research funding, research grants, taxpayer funded.

American Civil Liberties Union, Actions for Restoring America:  How to Begin Repairing the Damage to Freedom in America After Bush, October 20, 2008.  Includes a section on Freedom of Information (Priority 3 for the First 100 Days) and a section on Scientific Freedom (Priority 16 for the First Year).

Annenberg Research Network on International communication, Campaign 2008: USC Annenberg Technology And Media Policy Watch, October 15, 2008.  A report criticizing "both campaigns for a lack of leadership in addressing controversial issues of intellectual property."  The authors "found surprising silence from both political parties on what the report called an 'era-defining' set of issues, including application of the fair use doctrine and the role of the public domain in the creation of digital culture."

Rebecca Blakeley, CRS Reports to the People!  Free Government Information, October 27, 2008.  Calls on the next administration to provide OA to CRS Reports.

Matt Haughey, How to get my nerd vote, A Whole Lotta Nothing, October 21, 2008.   Calls for "Public Domain dumps of every photograph, recording, film, and publication commissioned by the government in an easy to retrieve place."

Lawrence Lessig, Copyright and Politics Don't Mix, New York Times, October 20, 2008.  An op-ed on how copyright law is interfering with the presidential campaign.  Among other things, Lessig calls for "the law [to] be revised, bringing focus to the contexts in which its important economic incentives are needed, and removing it from contexts where it isn't."

Let's Save Science! Inside the Innovation 2008 Science Policy Conference, Discover, October 29, 2008.

Letter from 76 American Nobel laureates in support of Barack Obama, based on his positions on science and research.  (It doesn't mention OA.)  Undated but sometime in October 2008.

OMB Watch, Draft recommendations on government transparency for the next President, October 21, 2008.  A section (pp. 50-53) is devoted to "Scientific Openness and the Media" but it's less concerned with OA than preventing Bushite censorship of government scientists.

Project on Government Oversight, Recommended Good Government Reforms for Presidential Transition Teams, October 20, 2008.  Recommends OA for all "new government-generated or government-collected information that is not exempt" from the Freedom of Information Act.

ScienceDebate 2008.  McCain and Obama's written answers to 14 questions on science policy.  I submitted a question on OA to publicly-funded research, but it was one of 3,400+ questions which didn't make the cut.

Heather West, Next President Has “Open” Opportunity, Center for Democracy and Technology, October 29, 2008.  Calls for libre OA to government information, but doesn't mention publicly-funded research.


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