Unfortunate: 'Open' Advocate Darrell Issa Sponsoring Bill That Will Close Off Open Access To Gov't Funded Research

from the tragic dept

For years, we've pointed out the ridiculousness of various attempts to lock up federally funded research. If anything, it would seem that research that is federally funded should be required to be open to the public. After all, the public paid for it. And, in fact, a few years back, the National Institutes of Health (NIH) instituted a program that said that any research funded by NIH had to be offered in an open access manner by 1 year after its publication date. The "issue" here is that the big academic journals have the greatest scam in the world running: they don't have to pay writers (and, in some fields, the writers actually have to pay them) who submit their papers. They don't have to pay other academics to do peer review, as that's done for free. So all of their content isn't paid for. But... they do require that the writers hand over their copyright, and then lock it up in journals that are crazy expensive -- and totally inaccessible to the average person who isn't affiliated with a university library willing to shell out the cash.

That's not good for science or innovation. And, when it's on federally funded research, it's almost criminal.

So, the NIH had this open access requirement, which was then augmented by a Congressional requirement. The 1 year still lets journals get crazy monopoly rents... but even then, many journals have sought ways to make these open access requirements difficult. For example, if you click that link, you can see how the American Psychology Association tried to charge the academics who wrote for it $2,500 to "deposit" their publication to PubMed to satisfy the NIH requirement.

So, for years, the big publishing houses have been trying to get Congress to pass a law to lock up federally funded research. In the past, this effort was led by Rep. John Conyers -- who has received lots of campaign contributions from the big publishers. A few years ago, the Obama administration actually suggested it was leaning in the other direction -- and actually requiring all federally funded research to be open access, rather than just NIH. That would be huge... but of course, the big publishers won't allow that to happen. They even made the ridiculous argument that open access requirements would harm transparency in government. Yeah. Don't even try to understand it, because it doesn't make sense.

Tragically, it appears that a new version of this bill has been introduced... called the Research Works Act. It's a pretty short bill, but here's the key part:
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.
Note the use of "private-sector research work." There's a definition for that:
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.
This is tragically bad drafting in that depending on how you interpret the commas, it almost certainly means that the NIH requirements and anything similar would be barred. That is, it appears to define federally funded research as "private sector research work," if it's going to be published by a private journal. The Association of American Publishers sure was quick to celebrate the bill, making it clear that it was exactly what they wanted: a ban on forcing works they publish into open access models. Of course, the language is purposely vague so that if you misread it, you might think it doesn't include government-funded works. That's not true. It simply doesn't include government produced works, which are public domain by definition and couldn't be thus limited anyway.

Furthermore, the bill appears to create a new copyright-like "right" for publishers outside of copyright itself. That is, it grants the final say in permission to the publisher, rather than the copyright holder. So, even in a case where an author retains the copyright, or retains distribution rights, this bill could potentially grant the publisher extra rights out of thin air.

The real tragedy here? The bill's sponsor is Rep. Darrell Issa -- who's based much of his recent political career on the claim that he wants more open government. Yes, the same Darrell Issa who put forth the SOPA/PIPA alternative, the OPEN Act, with its awesome open website that allows for direct feedback on the bill. And he's behind the open access to Congressional hearings video that we just talked about.

This bill seems to go against everything that he's said he stands for on related issues, and people are definitely noting how odd this seems.

There's no two ways about it. This is a bad and dangerous bill that will only serve to lock up important, taxpayer-funded research. As we've discussed in detail in the past, such locking up of research does tremendous harm to important scientific research, puts people in harm's way and slows down innovation. It's tremendously disappointing that Rep. Darrell Issa would be behind such a bill. It really does seem to go against everything that he stands for.

Filed Under: copyright, darrell issa, federally funded research, nih, open access, publishers, research


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  1. icon
    gorehound (profile), 9 Jan 2012 @ 5:23pm

    And this is why I won't stand for the Open Internet BS.
    It is just the "kinder gentler" SOPA/PIPA

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