Congress last week introduced the Federal Research Public Access Act of 2012 (FRPAA), a bill that would mandate free public online access to taxpayer-funded research for all federal agencies with extramural research budgets over $100 million. The bill was introduced in identical versions in both the House and the Senate, staking out a position counter to the publisher-backed Research Works Act (RWA), a bill that would bar federal agencies from requiring public access as a condition of funding. It is the third time FRPAA has been introduced since 2006. But this time, amid backlash to the RWA, does FRPAA have a shot at passage?
“Realistically, any legislation will have an uphill battle in an election year,” observed Heather Joseph, executive director of SPARC (the Scholarly Publishing and Academic Resources Coalition). And, she notes, FRPAA has an added challenge: it has been referred to the U.S. House Committee on Oversight and Government, the committee chaired by the sponsor of the Research Works Act, Rep. Darrell Issa (R-CA).
Still, public access advocates like Joseph sense an opening and are preparing to push hard to advance FRPAA. The RWA’s introduction in January has proven to be something of a PR nightmare for publishers, and a boon to public access advocates, Joseph notes, with the public and the research community engaged with the issue on an unprecedented level, from editorials in major publications, to recognition of the issue by public advocacy groups, and even a petition drive among scientific researchers in which nearly 5600 signatories thus far have pledged not to publish with, referee, or do editorial work for leading STM publisher Elsevier, partly due to its support of the RWA.
“One thing is for sure,” Joseph told PW, “the nature of the conversation on the [public access] issue has changed. The RWA debacle has helped to engage researchers on this issue in droves, so we’re seeing a more substantive discussion of how opening up access to this information helps scientists do their work.”
If passed, FRPAA would require that each taxpayer-funded manuscript, whether funded whole or in part, be deposited in a government-maintained digital archive, and that each final paper be made freely available to the public online, no later than six months after the article has been published in a peer-reviewed journal.
“Americans have the right to see the results of research funded with taxpayer dollars,” said the bill’s sponsor in the House, Congressman Mike Doyle (D-PA), in a statement. In addition, Doyle said the measure would “encourage broader collaboration” in the scientific community, and would “lead to more innovative research outcomes and more effective solutions in the fields of biomedicine, energy, education, and health care.”
The competing publisher-backed Research Works Act, on the other hand, would bar all public access mandates, as well as overturn the mandate that started it all, the 2007 National Institutes of Health (NIH) directive that requires NIH grantees to deposit their final manuscripts in the PubMed Central database to be made freely available to the public within one year.
Officials at the Association of American Publishers have maintained that public access mandates disrupt the “planned funding, development and back-office administration” of publishers own electronic repositories, and “unfairly compete” with established publisher products.
“The Research Works Act will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers,” said Tom Allen, AAP president and CEO, in a statement.
So, what’s next in the battle for public access mandates? In the near-term, the introduction of two polar opposite bills likely means a stalemate, especially, as Joseph notes, in an election year. But in the larger scheme, recent events suggest publishers may be running out of options.
The RWA is publishers’ second attempt to push legislation that would derail public access measures. In 2009, the Fair Copyright in Research Works Act sought to forbid public access mandates, but that measure failed to get out of committee.
Publishers have also argued that the NIH mandate, implemented as part of an omnibus spending bill, failed to follow protocol, and should be scrapped pending a federal rulemaking procedure. That argument was rejected.
And, publishers have set the stage for a possible legal challenge, arguing that the implementation of public access mandates fundamentally alters copyright law, and puts the U.S. in violation of International agreements, such as the Berne Convention. That argument, however, has failed to gain much traction, and has been refuted by public access advocates.
For public access supporters, it remains to be seen whether the third time can be a charm when it comes to FRPAA. But Joseph says the backlash to the RWA most likely expedited the return of FRPAA at the very least, and could very well help move the bill if not in this session, then in the next, having "galvanized supporters of open access," and created “a unique window of opportunity” for action.
“It was pretty amazing to see the issue's champions in the House and the Senate coordinate simultaneous introduction of identical bills,” Joseph told PW. “Bipartisan and bicameral action in 2012, and on public access no less.”