On Wed, 13 Aug 2003, Samuel Trosow wrote: > Stevan, > > I thought you might be interested in looking at a paper I'm writing on > the Public Access to Science Act (Sabo Bill, H.R. 2613). > I've posted a working draft on my website at: > > http://publish.uwo.ca/~strosow/Sabo_Bill_Paper.pdf > > and will be updating it as changes are made. I would certainly value any > feedback from you. > > Samuel E. Trosow > Assistant Professor > University of Western Ontario > Faculty of Information & Media Studies > Faculty of Law > http://publish.uwo.ca/~strosow/
Dear Sam, Before I read your entire paper, I thought I would comment on your summary (below). I think this will already anticipate the comments I would make on your full-text. Then you can perhaps reply and also let me know which parts of the full-text I would need to address more specifically: My overall reaction (and this applies both to the Sabo Bill and to your paper on it) is that the research access problem cannot be understood purely on the basis of (1) whether or not the research is publicly funded by tax-payer money, nor (2) whether or not the research publication is freely accessible to the tax-paying public. It is about access to research by and for researchers, for the sake of research progress, to the benefit of all tax-payers. Nor does it concern all research-based writings (e.g., books, textbooks): only peer-reviewed journal articles. And it does not require that the article's text be placed in the public domain: only that its full-text should be publicly accessible for free on the web. That is all the Bill needs to mandate. If it does that, it will provide a great benefit for tax-payers and for the progress and productivity of funded research. (1) RESEARCHER ACCESS. The real issue is that *all* research (whether funded or unfunded, whether health-related or not) that is published in peer-reviewed journals is written to be read, used, applied, and cited by *other researchers* in building further research on it. Anything that blocks that access by any of its potential user-researchers worldwide is blocking the impact and progress of the research itself, hence blocking the intentions of its funders. Free access to research for researcher-users should therefore be the basis for the appeal for open access, rather than free access for the tax-paying public. (Public access is a welcome thing too, but it is not the tax-paying public that is interested in reading and using the research in the planet's 24,000 peer-reviewed journals, but the research community itself; it is the *benefits* of this open access to research, in terms of research progress and applications, that the tax-paying public then inherits from open access. Just an appeal for layman-access to specialized research will not get very far once it is scrutinized closely and thought through.) (2) PEER-REVIEWED RESEARCH JOURNAL ARTICLES VS. BOOKS. Another weak point in the Sabo bill is that it does not make any principled distinction between the different ways that authors may report and use their research findings. The specific target is (and should be) peer-reviewed journal articles, because those are the writings that authors themselves have been giving away all along: Researchers never sought royalty revenue from their journal publications because those were written exclusively for research impact: to be read, used, applied and cited by other researchers. It was the impact from that usage and citation that was in turn rewarded (by salary increases, promotions, tenure, further research funding, prizes, prestige), because it constituted research productivity and progress. But sometimes researchers wrote books, or textbooks, in addition to journal articles, and from those writings they sought royalty revenues, like any other author. (They never actually earned very much in the way of royalties, but that is another matter.) http://culturemachine.tees.ac.uk/Cmach/Backissues/j002/Articles/art_harn.htm The point is that those books, unlike journal articles, were *not* author give-aways, written only for research impact, and they were hence in exactly the same category as other books written by authors, whether or not based on funded research. Without making a *principled* journal/book distinction (i.e., an author give-away vs. author non-give-away distinction), the Sabo Bill is doomed to slide down the slippery slope that makes it seem equally applicable to *everything* a researcher ever writes that has been informed in *any way* by funded research. (This slippery slope is definitely to be avoided, if the PASA is to have any hope of success). The principled distinction is clearly between (G) the category of publication that, without exception, the author *chooses* to give away, seeking only research impact -- namely, refereed journal (and conference) articles -- and (for the time being) (N) every other form of scholarly publication, whether or not it is based on or derived in some way from funded research. http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#1.1 (3) RESEARCH TEXTS VS. RESEARCH CONTENTS: Related to the foregoing point, it must not be forgotten that whereas the research funders can lay some claim to the ownership of or a stake in the research *findings* -- and hence can mandate that they are to be made public ("publish or perish"), they cannot lay claim to the researcher's *writing* itself: A researcher is paid to do research and to make his findings public, but he is not a paid writer-for-hire. This distinction between the public reporting of research *content* and the actual text of researchers' writings is another weak point of the Sabo Bill as it now stands. There is no need to run aground on this problem, however, for the journal/book distinction salvages the spirit of the intended outcome. Researchers *want* to give away their peer-reviewed journal writings, even though they do not *have* to do so. And it is their *reason* for wanting to do so -- namely, to maximize their research's impact by maximizing other researchers' access to and usage of their writings -- that should be the core rationale of any policy or legislation. (4) PUBLIC ACCESS VS. PUBLIC DOMAIN: AUTHORSHIP, CREDIT, PLAGIARISM, PRIORITY, TEXT-INTEGRITY. I don't fully understand the notion of making one's writing "public domain" instead of retaining copyright, but if that puts either the text's authorship or the text's verbatim integrity at any risk -- i.e., if someone else could then legally reproduce my text without my name as author, or even attaching his own name, or could reproduce my text in an altered form, with or without my name -- then it is certain that researchers will not want that! It's one thing to give away access to one's text for free online, for anyone and everyone to read and to use (the *content* of the text, while quoting/citing/attributing any actual *words* used from the text itself), and quite another thing to renounce one's right to protect the integrity of one's text, or to be fully credited with its authorship. http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#1.3 http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#5 (5) COPYRIGHT RELAXATION VS. COPYRIGHT RENUNCIATION. Related to the foregoing point, it is not at all clear that any great change in copyright law or policy or in copyright transfer agreements is needed other than to ensure free public full-text access online. This can be accomplished within existing copyright or licensing agreements with publishers, and requires only that the publisher formally agree to allow the author to self-archive the full-text for free access worldwide on the web (as 55% of journal publishers already do: http://www.lboro.ac.uk/departments/ls/disresearch/romeo/Romeo%20Publisher%20Policies.htm If the Bill instead requires authors to ask for *more* than is really necessary to provide open access, it will merely provoke needless author opposition to the very Bill that is meant to benefit them! Authors will not want to be forced to publish only in the journals (if any) that agree to renounce copyright transfer and to publish public-domain texts. (6) OPEN-ACCESS PUBLISHING VS. OPEN-ACCESS SELF-ARCHIVING. Again related to the foregoing point, your own paper and the Sabo Bill both seem to be focused mainly on only one of the two complementary means of gaining open access: Publishing in an open-access journal, which provides full-text access to all of its contents for free, is one way to gain open access. But there exist only 500 such journals at the present time. http://www.doaj.org/ What about the articles in the other 23,500 peer-reviewed journals? http://www.ulrichsweb.com/ulrichsweb/analysis/ The only thing that the authors of articles in those journals require is that those journals should support open-access self-archiving in the authors' own institutional open-access archives, as 55% of journals sampled already do officially (and most of the others will do, if asked). http://www.lboro.ac.uk/departments/ls/disresearch/romeo/Romeo%20Publisher%20Policies.htm http://www.eprints.org/self-faq/ (6) RESEARCH: SCIENCE VS. NON-SCIENCE; FUNDED VS. UNFUNDED. The heart of worldwide research's and researchers' rationale for open access (to their give-away, peer-reviewed journal research -- 24,000 journals' worth, over 3 million articles annually) is research impact. It is through impact (uptake, use in further research, citation) that research progresses; and it is for impact that researchers are rewarded. Hence it is in all researchers' (and all research's) interest to maximize its impact by maximizing access to it. Although government is only in a position to influence funded research, it is important to place their rationale for mandating open access for this research in the broader context of open access to all refereed research, whether funded or unfunded, and whether scientific or scholarly. http://www.ecs.soton.ac.uk/~harnad/Temp/self-archiving.ppt And just as open access is not just about funded scientific research, it it is not just about US research output, or about US access to research output. There is a global reciprocity in research on the planet that knows no borders (just as the Internet knows no borders). Research is cumulative and collaborative, and all researchers need access to one another's research output so they can keep building on it. The Golden Rule prevails (and the alternative is the Prisoner's Dilemma!). http://www.ecs.soton.ac.uk/~harnad/Temp/unto-others.html The Sabo Bill should accordingly also be placed clearly in this context of global reciprocity for all research. (The core intuition, based on US tax-payer access to US-funded health research is in this respect both parochial and misleading, and will generate obvious contradictions that will undo the whole spirit of the proposal. Free research access for researchers, for the benefit of all tax-payers, should be the broader rationale, with lay access to health information only an important special case.) I now quote/comment your paper's summary, on the basis of the above: > Should works resulting from research that has been substantially > subsidized by the United States Federal Government be protected by > copyright or immediately enter the public domain This mixes means and ends: The goal is not that the "works" (which? articles? books?) should lose copyright protection and enter the public domain, but that the full-texts of refereed-research articles should be accessible for free to all would-be users (world-wide). And although the US can only mandate this for its own funded research output, the target is all of research, whether funded or unfunded, as reported in all texts that the researcher elects to give away (as all refereed-journal authors do). This does not require renouncing copyright protection or copyright transfer to publishers; it only requires a guarantee of the author's right to make the full-text immediately accessible online for free, for all would-be users worldwide, forever. > The Public Access > to Science Act PASA would place these works in the public domain in > the same manner as works prepared by government employees Works by government employees are presumably works for hire. The works of university researchers (whether US-funded or not) are not. Researchers are (for example) free to publish books based on their research, and free to seek royalty from the sale of those books. But, without exception, researchers do not seek royalty revenue from their refereed-journal articles. They seek only research impact -- from their uptake and usage. They do, however, still seek credit for those writings, and for that, their authorship, and the integrity of their texts, must continue to be protected. It is not clear that putting them in the public domain would provide that protection; hence anything that threatened to force them to renounce that protection would only arouse needless opposition from the very authors that it was meant to benefit: needless, because all they really need is the right to make their full-texts freely accessible online. No need either to renounce copyright or to renounce the journal publishers that refuse to publish public-domain texts. > This paper > evaluates the merits of the legislation by placing the question > of the appropriate copyright treatment of federally subsidized > works within an historical perspective taking into account the > underlying purposes of copyright policy as well as the changes that > have taken place in field of scholarly publishing since Congress > last considered the issue in 1976 It is not at all clear that a change in copyright law is needed if open access is the objective. What is needed is at most a minor change in copyright transfer policy (one already made by 55% of journals sampled): the guarantee of the author's right to make his own full-text publicly accessible online for free. http://www.lboro.ac.uk/departments/ls/disresearch/romeo/ > The regulatory environment and > practices of the major federal funding agencies are reviewed showing > that agencies have failed to utilize their broad discretion over > the treatment of funded works resulting in an over protection of > works as the default rule True. But funding agencies cannot treat all writings by funded researchers that are in any way based on funded research as if they were works-for-hire paid for by the funding agency. The university researcher is not a US government employee. The funding agency *can* however, mandate, that the full text of all peer-reviewed journal publications reporting the findings of funded research must be made freely accessible online (either by publishing them in an open-access journal, when a suitable one exists [500 journals to date], or [for articles in the other 23,500 journals] by self-archiving them in an open-access archive). The slippery slope of books and other derivative works should be explicitly avoided. This is about refereed journal (and conference) articles only. > The paper considers how the balancing > of interests that has historically informed copyright policy > should be applied to works that have been federally supported Federally supported research does not mean writing-works-for-hire. The funders can mandate publication of research findings, can even mandate that the full-text of the publications must be accessible for free *if the author elects to publish royalty-free (as all refereed-journal authors do)*, but they cannot mandate that authors who wish to sell their texts should not be allowed to do so. These fine distinctions all become moot and trivial, however, if the target is clearly and explicitly stipulated in advance to be *refereed journal articles only*, and if the only objective is that the full-text must be made immediately (and permanently) accessible for free online upon publication in the refereed journal. > it will review and assess the initial reactions to PASA from the > point of view of various stakeholders including the commercial > publishers non commercial publishers universities authors and > researchers and library associations Refereed-journal publishers will accept (and most already do accept) author retention of open-access self-archiving rights. If that is the sole point of discussion, agreement will be reached quickly. But if the waters are muddied with needless "public domain" constraints that are unnecessary for the goal of open access, then only further confusion, confrontation, and little progress will result. http://www.stm-assoc.org/infosharing/springconference-prog.html > and it will consider whether > the PASA's purposes might be accomplished through other mechanisms They can be: via simple retention of their open-access self-archiving right by refereed-journal authors, as reinforced by research-funders' mandating the provision of free access to the full-text of refereed-journal articles reporting the research. No need for public domain. http://www.ariadne.ac.uk/issue35/harnad/ > The conclusion is reached that works resulting from extramural > research that has been substantially subsidized by the Federal > Government should enter the public domain in the same manner as > works resulting from intramural government research undertaken > by federal employees and that PASA provides a straightforward > mechanism for reaching this result. The conclusion goes far beyond the call for free online full-text access to refereed research, and I believe it would generate needless confusion and resistance. Writings based on funded extramural research are not works for hire, and cannot be treated as such. Publication in peer reviewed journals can be mandated. And free full-text online access to those publications can be mandated. But that does not require or constitute treating those texts as works-for-hire, destined for the public domain. It would also give this initiative more credibility and scope if it were portrayed (as it indeed is) not merely as a US funded-science issue, but as part of a initiative to maximize research impact by maximizing research access, worldwide, for all refereed research, scientific or scholarly, funded or unfunded. The PASA would then be seen as one of several means of accessing this global goal. Stevan Harnad NOTE: A complete archive of the ongoing discussion of providing open access to the peer-reviewed research literature online is available at the American Scientist September Forum (98 & 99 & 00 & 01 & 02 & 03): http://amsci-forum.amsci.org/archives/American-Scientist-Open-Access-Forum.html or http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/index.html Discussion can be posted to: american-scientist-open-access-fo...@amsci.org