In a press release this week, the Association of American Publishers shared the concerns of more than 125 scholarly society and research organizations in opposition to a potential Trump administration executive order that could potentially achieve something with the stroke of a sharpie that open access advocates have been unsuccessfully pushing legislatively for years—free access to publicly funded research.
“If the proposed policy goes into effect, not only would it wipe out a significant sector of our economy, it would also cost the federal government billions of dollars, undermine our nation’s scientific research and innovation, and significantly weaken America’s trade position,” said Maria A. Pallante, president & CEO of the Association of American Publishers. “Nationalizing this essential function—that our private, non-profit scientific societies and commercial publishers do exceedingly well—is a costly, ill-advised path.”
The question is: what policy? White House officials have so far remained mum on any potential public access order.
In a December 16 post on the Scholarly Kitchen blog, Robert Harington, associate executive director, publishing, at the American Mathematical Society, writes that "rumors" have been circulating about a draft executive order emanating from the U.S. Office of Science and Technology Policy (OSTP), which has been "tight-lipped" about the potential order.
"Among the likely recommendations appears to be that of a zero embargo on published journal articles," Harington adds. "Essentially, this means that articles from researchers who are federally funded will be freely available immediately following publication."
Another report this week in E&E News, an independent news organization that focuses on the energy and environment sector, also reports that some kind of order is apparently under discussion in the White House.
“About a dozen sources told E&E News that they were aware the White House has been considering an executive order but the details remain murky,” E&E reporter Kelsey Brugger reported, adding that a senior administration official declined to comment on “'internal deliberative processes that may or may not be happening.'”
The AAP release, meanwhile, references a December 12 letter from North Carolina Senator Thom Tillis, chair of the Senate Subcommittee on Intellectual Property, in which Tillis expresses concern that a potential executive order that would make "scientific articles available immediately" would "undermine incentives” for academic and scholarly publishers. Such an action, “without the benefit of public hearings and stakeholder input” he argues, would amount to “significant government interference in an otherwise well-functioning private marketplace."
The issue of public access to taxpayer-funded research has been the subject of repeated administrative and legislative action over the years. But no question, an executive order requiring "immediate" free access to journal articles would be an extraordinary measure.
In 2004, the National Institutes of Health drafted an open access mandate for the research it funds, which was eventually adopted in 2008. The mandate requires that NIH-funded research be made freely available to the public through the PubMed Central repository within 12 months of publication.
In 2006, U.S. Senators John Cornyn (R-TX) and Joe Lieberman, (I-CT) first introduced the Federal Research Public Access Act, which would have required every federal department and agency with an annual extramural research budget of $100 million or more to make their research available to the public within six months of publication. The bill failed to move and was re-introduced in 2010, and again in 2012.
In 2013, and again in 2015, Congress considered The Fair Access to Science and Technology Research Act (FASTR).
And also in 2013, the Obama Administration issued a Policy Memorandum that directed federal agencies with research budgets of $100 million or more to submit plans for the development and implementation of public access policies. In November, 2019, the Government Accountability Office issued a report finding that just 8 of 19 agencies "have fully developed and implemented mechanisms to ensure compliance with their public access plans and associated requirements."
For their part, publishers have consistently opposed government-mandated public access policies, arguing that market solutions to public access issues are sufficient. In turn, the publishing community has over the years supported alternative bills that sought to block public access mandates, including the Research Works Act, and the Fair Copyright in Research Works Act.
News of the Trump administration’s potential executive order comes as momentum is building around the globe in support of open access. In Europe, a controversial initiative called Plan S seeks to accelerate the adoption of open access policies. And in the U.S., the University of California terminated its subscription deal with leading scientific publisher Elsevier, insisting on an open access alternative.
In a statement, Heather Joseph, executive director of SPARC (the Scholarly Publishing and Academic Resources Coalition), said the organization had no details of any pending executive order, but strongly supports the goal of public access.
“Like others, we have heard rumors about a possible new Administration Open Access Policy," Joseph said. "SPARC has long advocated for a federal policy that would make the results of taxpayer-funded research immediately available for the public to freely access and fully use. We wholeheartedly endorse updating current policy and eliminating the unnecessary 12-month waiting period for the public to gain access to the outputs of taxpayer-funded scientific research, including data, articles, and the supporting computer code."