SPARC Open Access Newsletter, 3/2/13

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Peter Suber

Mar 2, 2013, 1:17:14 PM3/2/13
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     The SPARC Open Access Newsletter, issue #167
     March 2, 2013 
     by Peter Suber

     Read this issue online


SOAN is sponsored and published by the Scholarly Publishing and Academic Resources Coalition (SPARC).


United States doubles down on open access to federally-funded research

In the second half of February, the US federal government took two big steps to assure OA for federally-funded research. First, legislators from both parties introduced a strong new bill in both houses of Congress. The bill would essentially extend the successful green OA mandate at the NIH across the largest research-funding agencies in the federal government. Second, just eight days later, the Obama administration directed the same agencies, and about a dozen more, to develop OA mandates within the next six months.  

If you're counting, that's two houses of Congress, two political parties, and two branches of government. 

Here are some details and comments. Because this article is long, I'm including a table of contents:

1. The new bill before Congress 
2. The new White House directive
3. The bill and the directive are complementary
4. Agencies covered
5. Embargoes
6. The libre provisions
7. Avoiding copyright problems
8. Some notes on process
9. Some notes on history
10. Will FASTR pass?
11. What you can do

(1) The new bill before Congress

The bill is called the Fair Access to Science and Technology Research Act (FASTR). It was introduced in the Senate by John Cornyn (R-TX) and Ron Wyden (D-OR), and in the House by Mike Doyle (D-PA), Zoe Lofgren (D-CA), and Kevin Yoder (R-KS).

The quickest introduction is to say that FASTR is a strengthened version of the Federal Research Public Access Act (FRPAA). FRPAA was introduced in three earlier sessions of Congress (May 2006, April 2009, and February 2012), with growing support and momentum each time. But it never got out of committee or came up for a vote. When the current session began in January, Congressional friends of OA decided to up the game and introduce a stronger version of the bill. 

Both FRPAA and FASTR strengthen the OA mandate at the NIH by shortening the maximum embargo to six months, and then extend the strengthened policy across the federal government. FASTR goes one step further by requiring libre OA, not merely gratis OA, or by removing permission barriers and not merely price barriers. 

Because FRPAA is generally well-known --to both friends and foes of federal OA mandates-- I'll introduce FASTR by comparing it to FRPAA. Here's how FASTR and FRPAA are alike. (Section numbers in parentheses refer to FASTR, not FRPAA.)

* Both cover the same set of agencies, namely, all those spending at least $100 million/year to fund extramural research (Section 4.a). 

* Both give agencies one year from the passage of the bill (4.a) to develop their policies in conformity with the guidelines laid down in the bill.

* Both mandate "public access" (4.a.1, 4.b, 4.f.2.A), "free online public access" (4.b.4), and "free public access" (4.b.7.B, 4.f.2.A) without defining these terms. I'll call this kind of access "open access" ("OA") here for convenience.

* Both mandate OA through repositories (green OA) (4.b.7.A), and both are silent on OA through journals (gold OA). 

* Both require deposit of the final version of the author's peer-reviewed manuscript (4.b.1). Both allow consenting publishers to replace that version with the published version (4.b.3).

* Both give agencies freedom to designate a suitable repository for the mandatory deposits, when suitability includes "free public access, interoperability, and long-term preservation" (4.b.7). For example, agencies may host their own repositories, the way the NIH hosts PubMed Central. They may share a repository. Or they may ask grantees to deposit in suitable institutional or disciplinary repositories.

* Both apply to research funded "in whole or in part" (4.b.1) by one of the covered federal agencies.

* Both call for OA "as soon as practicable" after publication in a peer-reviewed journal, and both require it "no later than 6 months" after publication (4.b.4). Both require immediate or unembargoed OA for works by government-employed researchers (4.c). 

* Both avoid copyright problems by requiring agency policies 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" (4.c.3). 

* Both exempt classified research, unpublished research, royalty-producing research such as books (4.d.3). Both also exempt patentable discoveries, but only "to the extent necessary to protect a...patent" (4.d.3).

* Both are explicit in not amending copyright law or patent law (4.e).

Here's how FASTR and FRPAA differ:

* FASTR contains a provision on coordinating agency policies (4.a 2): "To the extent practicable, Federal agencies required to develop a policy...shall follow common procedures for the collection and depositing of research papers." This is an improvement over FRPAA. It will not reduce OA, but it will reduce the burden on universities that must comply with new procedures at all the covered agencies. By reducing the burden of compliance, it should improve compliance.

* FASTR contains three provisions calling for libre OA, reuse rights, or open licensing:
--FASTR includes a new "finding" in its preamble (2.3): "the United States has a substantial interest in maximizing the impact and utility of the research it funds by enabling a wide range of reuses of the peer-reviewed literature that reports the results of such research, including by enabling computational analysis by state-of-the-art technologies."
--FASTR includes a formatting and licensing provision (4.b.5): the versions deposited in repositories and made OA shall be distributed "in formats and under terms that enable productive reuse, including computational analysis by state-of-the-art technologies."
--FASTR requires that the annual report from each covered agency include a statement from the agency on "whether the terms of use applicable to such research papers are effective in enabling productive reuse and computational analysis by state-of-the-art technologies" (4.f.2.B.i) and the results of the agency's "examination of whether such research papers should include a royalty-free copyright license that is available to the public and that permits the reuse of those research papers, on the condition that attribution is given to the author or authors of the research and any others designated by the copyright owner" (4.f.2.B.ii).

I'll elaborate on many of these provisions in other sections below.

FASTR was introduced on February 14, 2013, which happened to be the 11th anniversary of the Budapest Open Access Initiative. It also happened to be Valentine's day. By next year, I hope we can say: Don't give candy; give knowledge.

The Senate and House versions of FASTR are identical. Here's language of the bill, from Rep. Doyle's office. 

For more background, see my reference page on FRPAA (now essentially complete)...
...and my still-growing reference page on FASTR.

(2) The new White House directive

On February 22, the Obama White House directed a large group of federal agencies to develop open-access policies within the next six months. The directive is signed by John Holdren, President Obama's chief Science Advisor.

White House announcement

Directive itself

Because Holdren is officially the Director of the White House Office of Science and Technology Policy (OSTP), some are calling this the OSTP directive. That's accurate and fair. But because it would not have seen the light of day without the President's approval, I'm calling it the Obama or White House directive. Incidentally, in addition to running OSTP, Holdren is the Assistant to the President for Science and Technology, and Co-Chair of the President's Council of Advisors on Science and Technology (PCAST).

Holdren's own title for the directive is, "Memorandum for the Heads of Executive Departments and Agencies". You can see why we need a new, snappier title. (Any ideas?)

The directive is big in its own right, and even bigger when put together with FASTR. It means that the executive branch is joining the legislative branch in trying to assure OA to federally-funded research. We haven't had that before. Convergent effort from two branches of government is a sign that the tide has turned on US public policy. 

The directive is also important because it's an action. While we debate FASTR, the White House directive is already taking effect. It's not a mere proposal. By next summer all of the largest federal funding agencies will have draft OA policies ready for review and implementation. This is seriously good for researchers, good for taxpayers, and good for everyone who depends on research for new medicines, useful technologies, or effective public policies. 

SPARC was right to call the directive a "landmark" and a "watershed moment". (I didn't write the SPARC press release; honestly.)

The White House directive and FASTR pull in the same general direction, but they are not identical. Here are the key points of similarity and difference. (Section numbers in parentheses refer to the text of the directive.)

* Both ask a wide range of federal funding agencies to require OA for the results of the research they fund. But the directive applies to more agencies than the bill. FASTR covers all the agencies spending at least $100 million/year funding extramural research. The directive covers all the agencies spending at least $100 million/year on *research and development* (Section 2). 

* Both permit embargoes, but the directive permits longer embargoes than the bill. FASTR caps embargos at six months, and the directive caps them at 12 months (3.a). Under the directive, stakeholders may petition an agency to change the length of the embargo to better meet the objectives laid out in the directive; but any such petition must present evidence (3.a.ii).

* Both ask agencies to develop their own policies within certain guidelines. FASTER gives them a year to do so (starting when FASTR is adopted) and the directive gives them half a year to do so, starting on February 22, 2013 (2). 

When I say that the White House directive has already taken effect, I mean that agencies have already been directed to develop OA policies. FASTR will only direct them to develop policies if and when FASTR itself is adopted.

If FASTR is eventually adopted, then all the FASTR-covered agencies will already have OA policies under the White House directive. Agencies with policies at the weak end of the spectrum allowed by the White House would have to revise their policies to comply with FASTR guidelines, for example, reducing permissible embargoes to a maximum of six months or strengthening their libre or open-licensing requirements. 

* FASTR is silent on data, but the White House directive requires OA for articles (Section 3) and OA for data (Section 4). 

* FASTR is silent on metadata, but the White House directive requires metadata to be OA from the moment of publication and "in a data format that ensures interoperability with current and future search technology" (3.c). This will help make covered research visible to search engines even during an embargo period.

* Both require deposit in an OA repository (green OA) and remain silent about publishing in OA journals (gold OA). In that sense, both initiatives build on the successful green OA mandate at the NIH, and reject the gold-favoring approach adopted by the Research Councils UK. 

The directive makes its green orientation explicit this way: "each agency plan shall...[e]nsure that publications and metadata are stored in an archival solution that...provides...access to the content without charge..." (3.f). Even if an agency wants to encourage, require, or pay for gold OA, it must still require green OA. This is exactly the fix I recommended last September for the RCUK/Finch policy in the UK.

By mandating green, the US is not only building on its experience with the NIH policy and refusing to follow the UK. It's also aligning itself with the green mandate emerging in the European Union. As Neelie Kroes, European Commissioner for Digital Agenda, tweeted on the White House directive: "New US announcement on #openaccess means more alignment w EU policy. Good stuff."

I don't want to digress too far on this point, but the UK's own Higher Education Funding Council for England (HEFCE) is now moving toward a green OA mandate for the Research Excellence Framework (REF). Germany and Australia are also rejecting the Finch report and RCUK approach in favor of green mandates.

* Both FASTR and the directive give agencies some flexibility about which repositories to use. But the directive adds a nudge missing from FASTR: agency policies must include "a strategy for leveraging existing archives, where appropriate" (2.a). Section 3 adds that "Repositories could be maintained by the Federal agency funding the research, through an arrangement with other Federal agencies, or through other parties working in partnership with the agency including, but not limited to, scholarly and professional associations, publishers and libraries."

* Both ask agencies to coordinate their policies. The directive puts it this way: "It is preferred that agencies work together, where appropriate, to develop these plans" (2).

* Both FASTR and the directive require agency policies to permit libre OA or to license repository deposits for reuse. They use different language to describe the desired type of freedom, and do not specify individual licenses. (For more details on the libre provisions in the directive, see Section 6 below.)

I elaborate on many of these provisions in other sections below.

(3) The bill and the directive are complementary

The legislative and executive strategies complement one another. FASTR does not make the White House directive unnecessary. FASTR may or may not be adopted. If it is adopted, it will be after some time for study, education, lobbying, amendment, negotiation, and debate. By contrast, the White House directive took effect on February 22, the day it was announced. The wheels are already turning. Compared to this executive action, FASTR is slower. (Thanks to Becky Cremona for this good line.)

Similarly, the White House directive does not make FASTR unnecessary. On the contrary, we need legislation to codify federal OA policies. The next president could rescind today's White House directive, but could not rescind legislation. 

In short, the directive has the advantages of certainty and speed, and FASTR, if passed, would have the advantage of permanence or longevity. 

As we'll see below, FASTR is stronger than the White House directive in some respects (shorter embargoes, stronger libre provisions), and the directive is stronger than FASTR in other respects (requiring OA for data as well as articles, and covering more agencies). That's another pair of reasons why the two approaches are complementary. 

One lesson: Support both. 

The Congressional sponsors of FASTR understand this complementarity and support both approaches. See the public statements from Mike Doyle in the House and Roy Wyden in the Senate praising the White House directive.

Another FASTR sponsor in the Senate, John Cornyn, praised the White House initiative while criticizing it for not going far enough. "As a long-time proponent of open-access, I am pleased to see that the White House agrees that the public deserves free access to the published results of taxpayer-funded research. However, these steps do not go far enough....Congress must pass [FASTR] to make open-access the law of the land." (Quoting a public statement emailed from Cornyn's office, February 22, but not yet apparently online.) 

Call that complementarity plus checks and balances. It's just what we need: two branches of government competing to go further to serve the public interest in public access to publicly-funded research.

(4) Agencies covered

FASTR applies to non-classified research from all federal agencies spending $100 million/year or more on extramural research. Under current budgets, it would cover these eleven agencies: 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.

The White House Directive applies to non-classified research from all federal agencies spending $100 million/year or more on "research and development". That's a broader category. We don't yet have a definitive list of the covered agencies, but the directive will cover all the agencies covered by FASTR and at least the following as well: Agency for Healthcare Research and Quality, Centers for Disease Control and Prevention, Department of the Interior, Department of State, Federal Highway Administration, Federal Aviation Administration, Food and Drug Administration, National Institute of Standards and Technology, National Oceanic and Atmospheric Administration, Smithsonian Institution, USAID, and the US Geological Survey.

Because the scopes of these two initiatives depend on agency budgets, they might shrink as a result of the lunatic "sequester" or series of across-the-board budget cuts that began yesterday. Yes, at the same time that we're making serious, promising, and long-awaited efforts to assure OA to federally-funded research, we're cutting federal funding for research. And we're not cutting research funding because anyone thinks it's a good idea. On the contrary, the two parties agreed to create this artificial disaster because they agreed that it was such a bad idea that the mere prospect of it should goose (now we must say, "should have goosed") Congress to avert it. 

Note in particular that FASTR, like FRPAA, would apply to the Department of Health and Human Services, which subsumes the NIH. Hence FASTR would strengthen the NIH policy both by shortening the embargo to six months and requiring open licenses. 

The National Endowment for the Humanities has an annual budget of more than $100 million, but it's not clear that it spends more than $100 million/year on research and development. Hence it's not clear that the White House directive applies to the NEH. 

Nevertheless, Jim Leach, Chairman of the NEH, has made a public statement in support of the White House OA directive. "Accordingly, we have underway a review of how to make NEH-funded research as widely and permanently accessible as possible. Recognizing that there may be no 'one-size fits all' approach that works for every field, we look forward to working with academic stakeholders and the Office of Science and Technology Policy in this endeavor."  

This may not be the same thing as "enlisting" to be covered by the directive. But it's a signal that the NEH wants to make its research OA, even if it has to act in parallel to the directive. It also means that the directive will have collateral benefits for the humanities even if doesn't directly apply to agencies funding research in the humanities. Finally, it suggests that agency support for OA is wider than the scope of either FASTR or the directive. 

Note to Congress and the White House: Don't stop with the largest agencies. Now or later, when these policies are drafted, debugged, and working, cover the smaller agencies as well.

(5) Embargoes

FASTR doesn't merely cap the maximum permissible embargo at six months. It requires OA "as soon as practicable" after publication (Section 4.b.4), and no later than six months after publication. 

The White House directive permits embargoes up to 12 months. Moreover, it has no comparable language about preferring embargoes to be as short as practicable. Indeed, it makes 12 months the default embargo: "[E]ach agency plan...shall use a twelve-month post-publication embargo period as a guideline" (3.a.i). 

The directive also allows stakeholders to petition to adjust the embargo periods set by an agency: "[E]ach agency plan...shall also provide a mechanism for stakeholders to petition for changing the embargo period for a specific field by presenting evidence demonstrating that the plan would be inconsistent with the objectives articulated in this memorandum" (3.a.ii).

First, note that under this provision embargoes can be made shorter, not just longer. Second, note that it's easier for researchers to provide evidence that long embargoes are inconsistent with White House objectives than for publishers to provide evidence that short embargoes are inconsistent with White House objectives. But we'll likely see petitions in both directions. The White House puts one of its objectives this way: "The Administration is committed to ensuring that, to the greatest extent and with the fewest constraints possible..., the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community" (Section 1). But it adds, "The Administration also recognizes that publishers provide valuable services, including the coordination of peer review, that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available" (Section 1).

My view is that any embargo period is a compromise with the public interest. Sometimes compromise is necessary to get a policy adopted. But even when compromise is politically necessary, the public interest still lies in immediate access, and all the covered funding agencies are still mission-bound to disburse public money in the public interest. Public policy-makers should try to identify and achieve the public interest, even when it conflicts with a well-funded private interest. It's understandable to compromise when they can't muster the votes; but it's not understandable to change the goal from public leadership to private mediation. Moreover, even when embargoes are a necessary compromise to get a policy adopted, we should always try to shorten embargoes over time for the same reason that we should always try to get closer to achieving the public interest. The NIH policy is exemplary is most respects, but it permits excessive embargoes. That's one reason why FRPAA and FASTR are so welcome. They would shorten it. 

Finally, even if short embargoes eventually trigger cancellations of non-OA journals, and publishers can provide evidence (which so far they have not done), strong OA policies may still be justified, and for two reasons. First, researchers and taxpayers will still have an interest in the shortest possible embargoes. Second, there are first-rate, peer-reviewed OA journals not threatened in the slightest by strong OA policies. It's not as if high-quality publishing per se requires subscription revenue or embargoes to protect that revenue.

In SOAN for September 2012, I appealed to considerations like these to draw a conclusion about rising levels of green OA. Here I can make a similar argument about shrinking embargoes:

If rising levels of green OA [or shrinking embargoes] do start to cause cancellations,...then we can decide what to do about it. We can act in light of the evidence, whatever it turns out to be. We can weigh the demonstrable degree of harm to publishers against the demonstrable degree of benefit to research, researchers, research institutions, and taxpayers. We can see to what extent the publishers experiencing cancellations are doing their best to adapt to the opportunities of the digital age, and to what extent they are laggards at adaptation who deserve no public assistance, especially at the expense of researchers and taxpayers. In short, we needn't let fear of harm serve as evidence of harm, and we needn't assume without discussion that even evidence of harm to subscription publishers would justify compromising the public interest in public access to publicly-funded research. Policy-makers must take seriously the argument that green OA mandates [with short embargoes] could be justified even if they do eventually cause cancellations. The case for this 'even if' argument can be long or short. It's essentially the argument for OA itself....[I]t's also the argument that public agencies should put the public interest ahead of private interests....But in either form, the argument is essential to avoid the mistake of letting public agencies make insurance for publishers a higher priority than access to publicly-funded research.

Some friends of OA have criticized the White House policy for allowing excessive embargoes. I join the criticism but praise the policy. We must distinguish a backward step from a forward step that could have been larger. The White House directive is a forward step that could have been larger. Whatever the reasons were for not taking a larger step forwards, there's no sense at all in which it's a step backwards.

At the same time, the White House should understand that publisher requests for embargoes, and especially requests to lengthen embargoes, are requests to put private interests ahead of the public interest. Even evidence that private interests would benefit from that imbalance should not suffice to bend public policy towards them.

(6) The libre provisions

In three separate places, FASTR calls for agency policies to permit "productive reuse" and "computational analysis by state-of-the-art technologies". I like the phrase "computational analysis by state-of-the-art technologies" better than "text-mining". FASTR makes agency policies evolve to permit new kinds of reuse, not just the kind represented by "text-mining" circa 2013. "Computational analysis by state-of-the-art technologies" is a considerably broader term than "text-mining", and will better withstand determined efforts to give it a narrow interpretation. (Yes, for the record: if FASTR is adopted without amendments, I predict such determined efforts to give this language a narrow interpretation.)

The White House directive takes steps in the same direction but doesn't go as far. It encourages "public-private collaboration to...maximize the potential for...creative reuse to enhance value to all stakeholders" (3.d). "Creative reuse" is essentially equivalent to FASTR's "productive reuse". And calling for a policy to maximize the potential for creative use is a recognizable call for libre OA and open licensing. The snag is that the directive doesn't actually require policies to maximize that potential. Instead it "encourages" it, and it encourages it through "public-private collaboration" rather than directly through open-licensing terms. 

Another part of Section 3 calls for policies to make federally-funded research "accessible to search, retrieve, and analyze in ways that maximize the impact and accountability of the Federal research investment" (3). Only the word "analyze" here suggests the possibility of text-mining. But it doesn't say text-mining, let alone computational analysis by state-of-the-art technologies.

FASTR requires agencies to study "whether [deposited OA] research papers should include a royalty-free copyright license that is available to the public and that permits the reuse of those research papers, on the condition that attribution is given to the author or authors of the research and any others designated by the copyright owner" (4.f.2.B.ii). Agencies that don't require CC-BY licenses must essentially explain why, and they must do so every year. 

That's why I've been telling colleagues that FASTR tacitly recommends CC-BY. It's fitting, then, that FASTR was introduced on the 11th anniversary of the BOAI, which also endorses CC-BY. The original BOAI statement was published in February 2002, three months before the launch of Creative Commons. Hence, it cited no CC licenses by name. But the 10th anniversary statement from the BOAI in 2012 was able to do so, and was explicit in Recommendation 2.1: "We recommend CC-BY or an equivalent license as the optimal license for the publication, distribution, use, and reuse of scholarly work."

Again, the directive doesn't go as far as FASTR, but at least it seems to nudge agency policies away from NC (non-commercial) restrictions: "In developing their public access plans, agencies shall seek to put in place policies that enhance innovation and competitiveness by maximizing the potential to create new business opportunities" (3).

The directive also adds this: "Agency plans must also describe...procedures the agency will take to help prevent the unauthorized mass redistribution of scholarly publications" (3). This looks bad, but is not as bad as it looks. It seems to prohibit mass redistribution, but it doesn't. It only prohibits "unauthorized" mass redistribution. Agency policies may easily authorize mass redistribution, through open licenses, and are even encouraged to do so by the directive's own exhortation to "maximize the potential for...creative reuse to enhance value to all stakeholders." Nevertheless, expect publishers to lobby for a blanket prohibition on mass redistribution, even of the authorized variety, and expect cautious or timid agencies to feel pressure to do so. 

Why this matters: Without permission for bulk downloading, there is no effective permission for text-mining, let alone computational analysis by state-of-the-art technologies.

Finally, note that FASTR's licensing provision also includes a formatting provision: The versions deposited in repositories and made OA shall be distributed "in formats and under terms that enable productive reuse, including computational analysis by state-of-the-art technologies" (4.b.5). Consider this a freedom-from-PDF clause, and thank goodness. Imagine liberal open licenses attached to PDFs, and no OA editions other than PDFs! Imagine that the only versions licensed for reuse were formatted to resist reuse. (It's almost as bad as requiring OA for federally-funded research, while slashing federal funds for research.)

Remember that the NIH policy and FRPAA were strictly gratis, with no hint of libre or open licensing. While all three legs of the BBB (Budapest-Bethesda-Berlin) definition of OA call for libre OA, it was politically unattainable when the NIH policy was adopted and each of the three times when FRPAA was introduced. Clearly the hope of the FASTR sponsors and the Obama administration is that reuse rights, even up to CC-BY, are politically attainable today. 

Also remember that the desirability of libre OA is not the same thing as the political attainability of libre OA. Two consequences of this fact are worth mentioning here. First, if libre OA turns out to be politically unattainable this year, at least in policies as far-reaching as these, the fall-back position is NIH/FRPAA. We can agree that FASTR would be better than FRPAA, but we should also agree that FRPAA is not only very good, but very much better that what we have now. 

Second, the libre elements in FASTR and the White House directive may add some supporters and subtract others. We know from years of discussion and debate that not all supporters of OA agree on the urgency of libre, and that not all those who want open licenses agree on which licenses are best for research articles and data. We also know that many educated people who are foggy on OA in general are even foggier on open licenses. For example, learned historians in the UK recently argued in public that CC-BY allows plagiarism, overlooking the "BY" in "CC-BY". They also argued that CC-BY lets users credit authors in any sloppy or inaccurate way they wish, when it allows authors to specify how they want to be attributed.

The fears and misunderstandings are rampant, and they coexist with informed disagreements. We don't have to re-open those discussions here to observe that the libre provisions in FASTR will add some supporters and subtract others, and that we don't know how those additions and subtractions will net out. 

Be prepared to explain to colleagues, to the press, and to your representatives in Congress why researchers need libre access beyond gratis access. But don't use those insider terms! Be prepared to answer objections and correct misunderstandings about reuse rights beyond fair use. Be prepared to explain why "productive reuse" and "creative reuse" are important, for what, and to whom. Be prepared to explain why public policy should remove permission barriers, and not just price barriers, to publicly-funded research. The case for gratis access to publicly-funded research was very intuitive to legislators, journalists, taxpayers, and of course academics. The case for libre access will not be nearly as intuitive. 

(7) Avoiding copyright problems

FRPAA and FASTR use identical language for instructing agencies to avoid copyright infringement. Agencies "shall...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 in each bill). 

The NIH avoids copyright infringement by requiring grantees to retain certain non-exclusive rights when they publish, and to use those rights to authorize OA. See the NIH policy FAQ, question III.A.5: "Authors can meet their Public Access responsibilities [under this policy] if they retain a small strand of the worldwide rights; the right to allow display of their final peer-reviewed manuscripts on PubMed Central...."

The FRPAA/FASTR provision allows agencies to adopt the NIH method if they like. That's good news, because the NIH method is battle-tested. Even publishers who hate it, and who have examined it from every angle, have not gone to court to sue for infringement. Instead, they've gone to Congress, and tried to amend US copyright law to prohibit the approach. That's a telling concession that even publisher opponents believe that the NIH approach is consistent with current law.

But the FRPAA/FASTR provision also allows agencies to take other approaches if they like. For example, the US Code of Federal Regulations has included a federal-purpose license (2 CFR 215.36.a) since 2005 for situations just like this. According to the license, agencies disbursing federal funds for the creation of written works "reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so."

Under FASTR, agencies may choose to use this license. Or if they are creative, they may make use of "any [other] law or guidance" that would be "effective" in steering clear of infringement.

By contrast, the White House directive is silent on how agencies should avoid copyright infringement. To me this is its most baffling omission. Obviously no agency will write a policy that requires infringement, or write a policy without the advice of lawyers. But the White House has not suggested any particular direction on this point. That fact is a reason for agencies use FASTR as a model, even when drafting policies to satisfy the White House directive. (In the next section, I give additional reasons for agencies to use FASTR as a model.)

(8) Some notes on process

Agencies developing OA policies policies under the White House directive "should use a transparent process for soliciting views from stakeholders, including federally funded researchers, universities, libraries, publishers, users of federally funded research results, and civil society groups, and take such views into account" (Section 2). This provision requires consultation and invites lobbying.

Six months from now, agencies will submit their draft policies to the White House Office for Science and Technology Policy (OSTP). OSTP will review them "in coordination with" the Office of Management and Budget (OMB) (2). Together OSTP and OMB will "provide guidance to facilitate the development of final plans that are consistent with the objectives of this memorandum and, where possible, compatible with the plans of other Federal agencies subject to this memorandum" (2). This provision suggests that OSTP and OMB may request changes in the policies. That too invites lobbying, not only at the level of individual funding agencies, but at the level of the OSTP, OMB, and White House. 

That's all we know officially. But we know quite a bit more, informally. We know that some agencies will have their own reasons to want to stronger policies and that some will have their own reasons to want weaker policies. Left to themselves they'd diverge. But both FASTR and the White House directive ask them to coordinate, even if they needn't agree on every detail. That will be interesting. 

Some agencies have been studying OA issues for years and some are fairly new to the subject. Some already know they want libre access beyond gratis access, and some don't know what the demands for reuse rights and open licensing are all about. 

Publishers will want to influence the process, to weaken the resulting policies, and we and our allies will want to influence the process as well, to strengthen the policies. Hence, while the directive has a kind of certainty that FASTR does not, because the directive is already an action and FASTR merely a proposal, the outcome of the process the directive has started is far from certain. 

This uncertainty has allowed both traditional friends and traditional foes of federal OA policies to support the directive. This too will be interesting.

The Association of American Publishers (AAP) condemned FASTR for the same reasons that it has repeatedly condemned FRPAA and the NIH policy. But the AAP actually praised the White House directive.

From the AAP's point of view, the directive is better than FASTR because it allows longer embargoes and may be looser on open licensing. But that can't explain the AAP praise for the directive. If those were the primary ways in which the directive differed from FASTR, the AAP would have condemned the directive too. From the AAP's perspective, the core of the directive is as bad as the NIH policy, because it requires green OA with up to 12-month embargoes, and it's even worse for taking the additional step of requiring some kind of open licensing. 

My reading is that the AAP praised the White House directive because it creates a process of consultation in which the AAP plans to play a part. 

Elsevier's Alicia Wise supports this reading: "For publishers, the OSTP has opened the door to what we believe will be constructive discussions with US federal funding agencies. The policy recognizes both the importance of the widest possible access to journal articles *and* the contribution that publishers make to the dissemination of quality research findings and the need for publishing costs to be met in a sustainable way. Both the SPARC open access advocacy network and the Association of American Publishers welcomed the policy, albeit with some interesting differences in emphasis and interpretation. So it's not that there won't be difficult discussions ahead; it's just that we enter them with OSTP guidance that endorses collaboration and consultation as the best way to develop good policies."

Tom Allen, president and CEO of the AAP, gives us a reason to take the analysis one step further. The AAP praise for the directive may be conditional. The AAP likes the invitation to play a part, but it may only like the results if it likes the results. In the AAP statement on the directive, Allen said, "The key to the success of the [White House directive], depends on how the agencies use their flexibility to avoid negative impacts to the successful system of scholarly communication that advances science, technology and innovation."

There's nothing improper about that position, and I take the analogous position on the other side. 

The White House directive permits a spectrum of agency policies, from strong to weak, and stakeholders have six months to persuade individual agencies to come in at the end of the spectrum they favor. I'm not surprised that the AAP welcomes that chance. But I admit that I am surprised that the AAP is saying that the weak end of the spectrum is acceptable to it. On my reading, as I mentioned, the weak end of the spectrum is roughly equivalent to the NIH policy on mandates and embargoes, and stronger on open licensing or "creative reuse". And of course directive-based OA policies would be much stronger than the status quo for most of the covered agencies, which have no OA mandates at all today.

If the AAP really finds the weak end of the spectrum acceptable, I hope it will be consistent, publicly endorse the NIH policy, and stop lobbying against it.

What happens if agencies develop policies to satisfy the directive, and then Congress adopts FASTR? The short answer is that FASTR would not roll back any of the ways in which the directive is stronger than FASTR. For example, agency policies would not have to stop requiring open data, and agencies not covered by FASTR would not have to drop their policies. At the same time, FASTR would add the requirements on which it is stronger than the directive. For example, if agencies allowed embargoes longer than six months, they'd have to revise their policies to cap embargoes at six months. If agencies were weak on reuse and open licensing, they'd have to strengthen their libre provisions.

If FASTR is adopted, then all the FASTR-covered agencies, or at least those with policies toward the weak end of the spectrum, will have to revise their policies upward. In the next six months, agencies will already be coordinating with one another and consulting with stakeholders, as required by the White House. But the prospect of future revision to conform with FASTR, especially after careful coordination and consultation, is a reason for agencies to set policy in light of FASTR in the first place. While we push hard for FASTR to be adopted, our message to agencies should be to use FASTR as a model even now, before it is adopted.

(9) Some notes on history

The Obama White House has twice collected public comments on federal OA policy for research articles. Its first public consultation ended in January 2010 and the second ended in January 2012. Both sets of comments overwhelmingly support OA. 

Through the National Science Board, the Obama White House also collected public comments on federal policy for open research data, in a period that also ended in January 2012. 

After the first set of public comments arrived in January 2010, the White House started working, slowly, toward a policy response. The direction and resolve firmed up after the second and third sets of public comments arrived in January 2012. Four months later a "We the people" petition asked the White House to require OA to federally-funded research. The petition only needed 25k signatures in the first 30 days to elicit an official response. It received that many in 14 days, and today has 65,700+ signatures. 

The petition was at least the fourth nudge in a long series. But we know it played a role because the OSTP included a direct response to the petition when it issued the policy directive.

However, we also know that the White House was already moving toward an OA policy. It released a glimpse of its thinking the month before the petition launched: "Responses to those RFIs [requests for information] are being analyzed now, but initial results show strong public support for increasing access to scholarly publications describing the results of federally funded research and for improving scientific data management and access. The NSTC [National Science and Technology Council] groups are continuing to consider the public comments received from the RFIs and how they should be incorporated into the objectives required by ACRA [America COMPETES Reauthorization Act]. Once they have finalized their decisions, the objectives of all three groups will be combined and presented to the CoS [the NSTC Committee on Science]."

We don't know what role may have been played by the suicide of Aaron Swartz on January 11, 2013, the public discussions of it, and the new support and visibility it brought to the cause of OA. But the White House had been working on its policy for more than three years by that point, and the directive itself appeared six weeks after Aaron's death. In light of the vetting that policy statements receive before release, I think we must conclude that the directive was essentially finished by January 2013.

The directive is less a response to recent events than it is long-awaited. After the first public-comment period in 2009-2010, many of us were vocally disappointed that the Obama White House decided to launch a second one in 2011-2012 rather than simply move directly to a policy response. For example, I wrote here in March 2012 that "The White House had all the information and public support it needed for action back in January 2010. It has more than enough now."

Before the new directive, the closest we've come to direct and public support from the White House was the day after Christmas in 2007 when President George Bush signed an omnibus spending bill ordering the NIH to adopt an OA mandate. 

Bush vetoed an earlier version of the bill because it spent too much. Even after it was amended, he expressed strong opposition to its high levels of spending. He also expressed reservations about the NIH provision, called for more study, and hoped that a non-mandatory version of the policy could be made to work. But he signed the bill anyway.

We've come a long way.

(10) Will FASTR pass?

Nobody knows of course. On the one hand, FRPAA had more support every time it was introduced in Congress. That experience, plus three hearings on OA, educated members of Congress about OA issues, and that education has helped extend support for OA and weaken the publishing lobby. If that were the only variable, we could expect more support for FASTR than we had for FRPAA. But it's not the only variable. FASTR isn't FRPAA, and has added provisions requiring libre OA. As we've seen (Section 6, above), those provisions could add or subtract net support.

In the House of Representataives, FASTR was referred to the Committee on Oversight and Government Reform, which is chaired by Darrell Issa (R-CA). Issa is notable in this context for two different reasons. First, he's a champion of openness of many kinds, which led him to oppose the Stop Online Piracy Act (SOPA) and support open government data. Second, he co-sponsored the Research Works Act (RWA), the most radical anti-OA bill ever introduced in Congress (December 2011). He was also twice a co-sponsor of the Fair Copyright in Research Works Act (FCRWA), or so-called Conyers bill, the second-most radical anti-OA bill ever introduced in Congress (September 2008 and February 2009). Both the RWA and FCRWA would have repealed the OA policy at the NIH and prevented any other federal agencies from adopting similar policies. 

Pushback from the public led him and co-sponsor Carolyn Maloney to withdraw the RWA just two months after introducing it. In their public statement withdrawing RWA (February 2011), they could have said something anodyne such as "The time wasn't right for this idea," or "We didn't succeed in making our case, but we still believe in it," or "We continue to oppose government mandates in this area." The last is a quotation from the Elsevier statement withdrawing support for RWA (February 2012).

Instead, Issa and Maloney said something remarkable (February 2012): "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 transition must be collaborative, and must respect copyright law and the principles of open access. The American people deserve to have access to research for which they have paid."

Congress has many moving parts. But Issa is one to watch, in part because of his key role on the committee considering the bill in the House, and in part because of his remarkable statement in the aftermath of the RWA. He supported OA. It looks like he supported OA mandates for publicly-funded research. 

If you're trying to understand Issa's mix of support and opposition to openness initiatives, here's a clue to incorporate as you will. Issa spoke at the Washington DC memorial service for Aaron Swartz. In his remarks, he said, "Stick it to the man...[Aaron] and I probably would have found ourselves at odds with lots of decisions, but never with the question of whether information was in fact a human right....Ultimately knowledge belongs to all the people of the world -- unless there's a really valid reason to restrict it."

If you're trying to assess some of the other cross-currents in Congress this year, note that Ron Wyden also spoke at the Aaron Swartz memorial. Wyden is a co-sponsor of FASTR in the Senate, and in December 2011 was Issa's ally in co-sponsoring anti-SOPA legislation. John Cornyn, the lead sponsor of FASTR in the Senate, also attended the Swartz memorial service, though he didn't speak. Both Issa and Cornyn have criticized the Obama Department of Justice for the prosecution of Swartz.

(11) What you can do


Thank the co-sponsors in the House and Senate. You can find their contact info in the links from their names in my reference page on the bill.

If you're a US citizen and your House representative and Senators are not already co-sponsors, ask them to be become co-sponsors. To contact your Congressional delegation, use the Legislative Action Center at the Alliance for Taxpayer Access. Or use CongressMerge.

Write the members of the House and Senate committees considering the bills, express your support the bill and ask them to support it as well:

FASTR in the Senate (S. 350) was referred to the Senate Committee on Homeland Security and Governmental Affairs.
--Committee home page
--Committee members and their contact information

FASTR in the House (H.R. 708) was referred to the House Committee on Oversight and Government Reform.
--Committee home page
--Committee members and their contact information

If you're writing to a member of Congress and need help with language, here are some models to follow or adapt:
--The public statements of support from major library, university, and public-interest organizations. I keep an up-to-date list on my FASTR reference page.
--The talking points from the Alliance for Taxpayer Access.

If your society or university press is a member of the Association of American Publishers, ask it disavow the AAP's public opposition to FASTR. Ask your society or press to make clear that the AAP did not consult its members and is not speaking for all its members. If it will take a further step, ask it to endorse FASTR. 

Post a FASTR support banner on your blog or web site.

Persuade individuals and organizations that supported FRPAA in the past to support FASTR today. I keep a list on my FRPAA reference page.

Follow the news on FASTR. The most comprehensive collection of news and comment on FASTR is the "oa.fastr" tag library at the Open Access Tracking Project (available in HTML, RSS, Atom, and other formats).

* On the White House directive: 

Thank the White House for issuing it. 

As I argued in Section 3 above, don't assume that the White House directive means that you may let up on efforts to persuade Congress to pass FASTR. As I argued in Section 7, be prepared to make the case for the reuse rights required in both FASTR and the White House directive. As I argued in Sections 7 and 8, if you have any contact with agencies covered by the White House directive, urge them to set policy under the standards laid down in FASTR.

Follow the OSTP blog for updates on this and other policy initiatives.

Follow the news on the White House directive itself. The most comprehensive collection of news and comment on the directive is the "oa.obama_directive" tag library at the Open Access Tracking Project (available in HTML, RSS, Atom, and other formats).


Five years ago in SOAN

SOAN for January 2, 2008

* One essay in that issue: "An open access mandate for the NIH"

Excerpt: "The day after Christmas, President Bush signed an omnibus spending bill containing a provision requiring the US National Institutes of Health (NIH) to mandate open access for NIH-funded research....This is a momentous victory, despite the 12 month embargo. Measured by the ferocity of opposition overcome and the volume of literature liberated, it's the largest victory in the history of the OA movement....It's big for at least five reasons...."

* Another essay in that issue: "Open access in 2007"

Excerpt: "The irrepressible progress of the open access movement means that every new year is richer than the last. At some point the thicket of new developments will make it impossible to write these annual reviews. As I wrote this year's review, I kept thinking that the point had come last year. Here are some highlights of 2007 in 15 categories...."

SOAN for February 2, 2008

* The lead essay in that issue: "The mandates of January"

Excerpt: "January 2008 was a nearly unsurpassed month for institutional OA policies. The two biggest policy breakthroughs came back to back: on January 10, the European Research Council announced its new OA mandate (pledged in December 2006) and on January 11, the US National Institutes of Health released the text of its new OA mandate (demanded by Congress in December 2007). Also in January, Italy's Istituto Superiore di Sanità adopted a new OA mandate, the Howard Hughes Medical Institute OA mandate took effect (adopted in June 2007), the Canadian Institutes of Health Research OA mandate took effect (adopted in September 2007), and the Charles Sturt University OA mandate became generally known (probably adopted in early 2007). The Swiss Academy of the Humanities and Social Sciences, Spain's National Research Council, and Hokkaido University adopted OA policies recommending but not requiring green OA, and the Russian cabinet clarified and reaffirmed a 2005 OA mandate for public sector information that was not being enforced. Altogether that makes three new mandates, two start dates for previous mandates, one public disclosure of an older mandate, one tightening of an older mandate, and three near-mandates --ten developments in eight countries (Australia, Canada, EU, Italy, Japan, Russia, Spain, Switzerland, and the US)...."

SOAN for March 2, 2008

* The lead essay in that issue: "The open access mandate at Harvard"

(Note that at the time I wrote this article, I had no affiliation with Harvard.)

Excerpt: "Harvard's new OA policy is not the first university-level OA mandate, but it's the first in the US, the first to be adopted by faculty rather than administrators, the first adopted policy to focus on permissions rather than deposits, and the first to catch the worldwide attention of the press and blogosphere....Did I mention that the Harvard policy was adopted by the faculty itself? Did I say that the vote was unanimous?..."


Ten years ago in SOAN

Ten years ago, the newsletter was on a year-long hiatus (September 2002 - July 2003). That was a post-sabbatical of full-time teaching in which I could not sustain the newsletter. "Ten years ago in SOAN" will resume with the September 2013 issue.


Coming this quarter

Here are some important OA-related events coming up in the next three months.

* April 1, 2013. The new OA policy at the Research Councils UK (RCUK) takes effect.

* April 1, 2013. Sir Mark Walport takes up his duties as the Chief Scientific Adviser to the UK government. Walport has been the Director of the Wellcome Trust and the prime mover behind its exemplary OA policies.

* April 18, 2013. The Digital Public Library of American (DPLA) plans to launch a working portal.

* May 2013. The nearly 50 funding agencies constituting the Global Research Council (GRC) plan to publish a consensus statement on how to promote OA.

* OA-related conferences in March 2013

* OA-related conferences in April 2013

* OA-related conferences in May 2013

* Other OA-related conferences



My colleagues and I launched TagTeam 1.2 on February 27, 2013. The new version has a simpler and more elegant user interface, and a simpler and more powerful search engine. The whole program should also be more stable. The enhancements will benefit the Open Access Tracking Project, which now runs on TagTeam.

The new search engine supports true boolean searching, phrase searching, wildcard searching, fuzzy searching, and more. The boolean operators are the capitalized English words, AND, OR, and NOT, of course with parentheses to mark out components of larger compounds. In the previous version you had to use separate search boxes to search by keywords and search by tags. These are now unified. To search for keywords and tags in the same query, just mark the tags with "#", as in "keywords AND #tags ". Here's an overview of the search syntax TagTeam now supports. 

Moreover, every TagTeam search now has a unique URL. This allows you to craft a careful search, bookmark it, and rerun it with one click.

If you use TagTeam for tagging, the old version of the tagging bookmarklet should work with the new version of the program. But the new version of the bookmarklet fixes a bug in the old one. Hence you should go to the "Bookmarks" tab, and drag the new bookmarklet to your browser bar.

Thanks to Tomas Reimers for the new UI design, to Justin Clark for developments under the hood, and to the Harvard Library Lab for funding and support.

TagTeam itself

The TagTeam source code

My introduction to TagTeam. (Bear with me while I revise this intro to reflect today's enhancements.)

Open Access Tracking Project 


This is the SPARC Open Access Newsletter (ISSN 1546-7821), written by Peter Suber and published by SPARC.  The views I express in this newsletter are my own and do not necessarily reflect those of SPARC or other sponsors.

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Peter Suber

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SOAN is licensed under a Creative Commons Attribution 3.0 United States License. 

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