Academics and researchers who support open access to research were able to take a (short) victory lap on Monday. Legislation that would have prevented federal agencies from publishing publicly-funded research without the approval of the originating journal died after Dutch publishing giant Elsevier pulled its support.

According to the Congressional Research Service, the Research Works Act (HR 3699, emphasis added) would have prohibited

a federal agency from adopting, maintaining, continuing, or otherwise engaging in any policy, program, or other activity that: (1) causes, permits, or authorizes network dissemination of any [“research funded in whole or in part by a federal agency”] without the prior consent of the publisher; or (2) requires that any actual or prospective author, or the author’s employer, assent to such network dissemination.

The proposed legislation contradicted the National Institutes of Health Public Access Policy (2008) which requires that NIH-funded researchers submit their manuscripts to the National Library of Medicine’s PubMed Central “no later than 12 months after the official date of publication.”

This boneheaded effort is the polar opposite of the tact being taken in Europe, where 19 research libraries are making 5 million digital objects freely accessible.

In the most amazing example of flip-flopping that I’ve seen lately, the bill sponsors — Rep. Darrell Issa (R-CA, elected in 2000) and Rep. Carolyn Maloney (D-NY, elected in 1992) — issued this statement (emphasis added):

As the costs of publishing continue to be driven down by new technology, we will continue to see a growth in open-access publishers. This new and innovative model appears to be the wave of the future… The American people deserve to have access to research for which they have paid. This conversation needs to continue, and we have come to the conclusion that the Research Works Act has exhausted the useful role it can play in the debate.

Useful role in what debate?

Academics from around the world have been protesting:

More than 7,400 researchers, including several in Canada, publicly declared they would not publish in Elsevier journals or peer review papers for those journals, or do editing work for them as part of a “Cost of Knowledge” boycott launched in January. The researchers normally provide those services for free to scieintific journal publishers.

Others opposing the legislation: the American Library Association (ALA) and the Scholarly Publishing and Academic Resources Coalition (SPARC). Late last year, danah boyd ranted against the “corporatization and manipulation of the knowledge” (and indirectly indicted the tenure process). The comments on her post are are worth reviewing. Like this one:

The choice is simple either you are for promoting scholarship and knowledge as a public good or you are trying to privately benefit from locking away knowledge. So be honest, when you say, it’s about tenure, what you really mean is it’s about my own personal monied interests (my mortgage) and be honest that that is what you are picking.

At the same time that Elsevier backed off the federal legislation, it pledged to lower prices for mathematics scholars:

Our target is for all of our core mathematics titles to be priced at or below US$11 per article (equivalent to 50-60 cents per normal typeset page) by next year, placing us below most University presses, some societies and other commercial competitors…. To make clear that we are committed to wider access, we have made the archives of 14 core mathematics journals open, from four years after publication, back to 1995, the year when we started publishing digitally. All current and future papers featured in these journals will become free to read, for subscribers and non subscribers alike.

Is the leopard changing spots or tossing the dog a bone?

I think it’s the later.

This isn’t the first time major publishing interests have tried to block open access to taxpayer-funded research. In two successive sessions (2008 and 2009), Rep. John Conyers (D-MI) introduced the Fair Copyright in Research Works Act, reportedly at the behest of the Association of American Publishers.

From 2002-2011, Reed Elsevier executives contributed $306,550 to House candidates. Of this $13,000 went to Conyers. Over the same period, Maloney took in $41,050 ($11,00 – 2004-2007; $13,550 – 2008-2009; $16,500 – 2010-2011).

However, Elsevier money doesn’t explain Issa’s support for the bill. Inexplicably, in a conversation on Twitter with publisher Tim O’Reilly, Issa claimed the bill did nothing to block open access:

Tim O’Reilly, @timoreilly:
@DarrellIssa If you’re so interested in openness, why did you author HR 3699, which prevents open access to federally funded research?

Darrell Issa, @DarrellIssa:
@timoreilly I understand your question, but HR 3699 does nothing to cut off access to federal funded research data. #opendata #openscience

https://twitter.com/#!/DarrellIssa/status/155023008338149376

We’re seeing yet another information industry, structured in a monopolistic or oligopolistic fashion, struggle with the destabilizing effect of Moore’s law and its cousins: every year, processing power gets cheaper, data storage gets cheaper, bandwidth gets cheaper. The fixed costs of the publishing system cannot be spread over a predictably comfortable number of printed units. Instead, every copy after the first one can be had (practically) for free (duplication costs – marginal costs – are approaching zero). That’s the nature of a public good, not a capitalistic one.

I called this a short victory lap for a reason. This bill represents a skirmish in a long war that has no end in sight.

Note: Rep. Maloney has been a sponsor of three bills that were signed by the President in her almost 20 years in the House; Rep. Issa has none to his name for his 10+ years. thomas.loc.gov – multi-Congress search

Reed Elsevier owns Lexis Nexis and Variety magazine; Elsevier publishes 27 scientific journals, including The Lancet, and owns 15 book imprints, including Academic Press and Morgan Kauffman. I authored a chapter in a MK book being published this spring; I agreed to write it more than a year ago, before I realized the connection.

EDITED to clarify I was talking about marginal costs approaching zero. In a competitive (“free”) market pricing model, at least when I was in grad school, price = marginal cost.

:: cross-posted from wiredpen
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