Notes on the Federal Research Public Access Act

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The bill itself

  • The Federal Research Public Access Act (FRPAA) requires "free online public access" to a very large swath of publicly-funded research in the United States. It strengthens the open access (OA) mandate at the NIH by reducing the maximum embargo period from 12 months to six months, and extends the strengthened policy to all the major agencies of the federal government.
  • It doesn't merely reduce the maximum embargo to six months, it requires OA "as soon as practicable" after publication (Section 4.b.4), but no later than six months after publication.
  • It asks agencies to come up with their own policies within the general guidelines laid down in the bill. It's not a one-size-fits-all solution and agencies are free to differ on the details. They will have one year from the bill's passage to develop their policies (4.a).
  • The FRPAA guidelines require agencies to mandate "free online public access" for agency-funded research. The guidelines do not define "free online public access" (4.b.4). Nor do they stipulate the timing of deposits, only the timing of OA. For researchers employed and not merely funded by the federal government, FRPAA allows no embargo at all (4.c.2).
  • Like the NIH policy, FRPAA applies to the authors' peer-reviewed manuscripts (4.b.2), not to the published editions of their articles. Like the NIH policy, it allows consenting publishers to replace the peer-reviewed manuscripts with the published editions (4.b.3). It does not apply to classified research or royalty-producing work such as books (4.d.3). It also exempts patentable discoveries, but only "to the extent necessary to protect a...patent" (4.d.3).
  • Unlike the NIH policy, FRPAA doesn't specify the OA repository in which authors must deposit their manuscripts, the way the NIH specifies PubMed Central. FRPAA leaves this decision up to the individual agencies. They could host their own repositories or make use of existing repositories, including the institutional repositories of their researchers. FRPAA only requires that the repositories meet certain conditions of OA, interoperability, and long-term preservation (4.b.6).
  • FRPAA and the NIH policy differ slightly in how they secure permission for the mandated OA. The NIH requires grantees to retain the non-exclusive right to authorize OA through PubMed Central. If a given publisher is not willing to allow OA on the NIH's terms, then grantees must look for another publisher. FRPAA requires agencies 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). The FRPAA approach gives agencies more flexibility. Agencies may use the battle-tested NIH method if they wish. They may use a federal-purpose license such as that codified in 2 CFR 215.36(a) (January 2005) if they wish. Or they may make use of "any [other] law or guidance" that would be "effective" in steering clear of infringement.
  • FRPAA does not amend copyright or patent law (4.e).
  • FRPAA applies to all unclassified research funded in whole or part (4.b.1) by agencies whose budgets for extramural research are $100 million/year or more (4.a). This includes 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.
  • FRPAA mandates OA for more research literature than any other policy ever adopted or ever proposed.

Current version of the bill

Previous versions of the bill

Major statements of support

  • The chancellors of six public higher education systems in Texas: U of Houston System, U of Texas System, Texas A&M System, Texas State U System, U of North Texas System, and Texas Tech System. See their joint open letter to Sen. John Cornyn, February 6, 2012.
  • The eleven provosts of the universities in the Committee on Institutional Cooperation (CIC): University of Illinois at Urbana-Champaign, Indiana University, University of Iowa, University of Michigan, Michigan State University, University of Minnesota, University of Nebraska at Lincoln, Ohio State University, Pennsylvania State University, Purdue University, and the University of Wisconsin at Madison. See their joint statement, February 23, 2012.
  • Fifty-two Nobel laureates in science: Alexi Abrikosov (Physics 2003), Peter Agre (Chemistry 2003), Paul Berg (Chemistry 1980), J. Michael Bishop (Medicine 1989), Linda Buck (Medicine 2004), Martin Chalfie (Chemistry 2008), Aaron Ciechanover (Chemistry 2004), Elias Corey (Chemistry 1990), Robert F. Curl Jr. (Chemistry 1996), Johann Deisenhofer (Chemistry 1988), Richard Ernst (Chemistry 1991), Andrew Z. Fire (Medicine 2006), Edmond H. Fischer (Medicine 1992), Riccardo Giaccardo (Physics 2002), Sheldon Glashow (Physics 1979), Roy Glauber (Physics 2005), Paul Greengard (Medicine 2000), Roger Guillemin (Medicine 1977), David Gross (Physics 2004), John L. Hall (Physics 2005), Leland H. Hartwell (Medicine 2001), Dudley Herschbach (Chemistry 1986), Avram Hershko (Chemistry 2004), Roald Hoffmann (Chemistry 1981), Tim Hunt (Medicine 2001), Louis Ignarro (Medicine 1998), Wolfgang Ketterle (Physics 2001), Klaus von Klitzing (Physics 1985), Roger D. Kornberg (Chemistry 2006), Yuan T. Lee (Chemistry 1986), Jean-Marie Lehn (Chemistry 1987), Peter Mansfield (Medicine 2003), Hartmut Michel (Chemistry 1988), Mario Molina (Chemistry 1995), Kary B. Mullis (Chemistry 1993), Erwin Neher (Medicine 1991), Arno Penzias (Physics 1978), John Polanyi (Chemistry 1986), H. David Politzer (Physics 2004), Stanley Prusiner (Medicine 1997), Venkatraman Ramakrishnan (Chemistry 2009), Robert C. Richardson (Physics 1996), Richard J. Roberts (Medicine 2012), Daniel Shechtman (Chemistry 2011), Brian Schmidt (Physics 2011), George Smith (Physics 2009), Hamilton Smith (Medicine 1978), George Smoot (Physics 2006), Akira Suzuki (Chemistry 2010), Jack W. Szostak (Medicine 2009), Joe Taylor (Physics 1993), John Walker (Chemistry 1997), and James Watson (Medicine 1962). See their open letter to Congress, March 28, 2012.

Major statements of opposition

  • 81 publishers: AACC International, Acoustical Society of America, American Association for Cancer Research, American Association for Clinical Chemistry, American Association of Anatomists, American Association of Immunologists, American Association of Physicists in Medicine, American Association of Physics Teachers, American Astronomical Society, The American Ceramic Society, American Chemical Society, American College of Chest Physicians, American College of Physicians, American Dental Association, American Fisheries Society, American Geophysical Union, American Institute of Aeronautics and Astronautics, American Institute of Biological Sciences, American Institute of Chemical Engineers (AIChE), American Institute of Physics Publishing, American Mathematical Society, American Meteorological Society, American Physiological Society, American Phytopathological Society, American Psychiatric Publishing, American Psychological Association, American Public Health Association, American Roentgen Ray Society, American Society for Investigative Pathology, American Society for Nutrition, American Society of Agricultural and Biological Engineers, American Society of Agronomy, American Society of Animal Science, American Society of Clinical Oncology, American Society of Hematology, American Society of Plant Biologists, APMI International, ARVO – Association for Research in Vision and Ophthalmology, ASQ – American Society for Quality, Association of Learned and Professional Society Publishers (ALPSP), AVS: Science and Technology of Materials, Interfaces, and Processing, Biophysical Society, Cambridge University Press, Crop Science Society of America, Ecological Society of America, Elsevier, The Endocrine Society, Entomological Society of America, F.A. Davis Company, GeoScienceWorld, Gival Press LLC, The Histochemical Society, Human Factors and Ergonomics Society, IEEE, Institute of Food Technologists, International and American Associations for Dental Research, International Association for the Study of Pain, John Wiley & Sons, Lynne Rienner Publishers, Inc., The McGraw-Hill Companies, Mycological Society of America, National Ground Water Association, The Optical Society, The Ornithological Council, The Physiological Society, Poultry Science Association, The Professional Animal Scientist, The Radiological Society of North America (RSNA), SAE International, Seismological Society of America, SEPM Society for Sedimentary Geology, Silverchair Science+Communications, Inc., Society for Experimental Biology and Medicine, Society for the Study of Reproduction, Society of Economic Geologists, Inc., Soil Science Society of America, Springer Publishing Company, Taylor & Francis, Thieme Publishers, University of the Basque Country Press, and Wolters Kluwer. See their joint open letter to Congress, March 5, 2012. Also see their press release announcing the letter. The letter was organized by the Association of American Publishers' Professional and Scholarly Publishing Division (AAP/PSP) and the DC Principles Coalition.

Action in support of FRPAA

  • See the petition in support of FRPAA at We The People, the White House petition site. Online since February 9, 2012. If the petition gathers 25k signatures, the Obama administration will review it and issue an official response.

Discussion and analysis

Reminders

This is the third time that FRPAA has been introduced in Congress and subject to public debate. Past experience suggests that these are the points that opponents are most likely to distort or fail to mention.

  1. FRPAA mandates deposit in OA repositories, not submission to OA journals. It focuses on green OA and ignores gold OA.
    • Federal grantees will remain free to submit their work to the journals of their choice.
  2. FRPAA does not mandate that subscription-based journals convert to OA. It does not tell any kind of journals what their access policies or business models ought to be. It regulates grantees, not publishers.
  3. FRPAA only applies to articles that have already been published in peer-reviewed journals.
    • This point has three important consequences. First, it means that FRPAA doesn't apply to unpublished articles or research notes. Therefore, it doesn't force premature disclosure from researchers who make patentable discoveries. The policy kicks in only after researchers voluntarily decide to publish.
    • Second, the policy does not bypass peer review. On the contrary, it demands peer review and merely widens access to peer-reviewed research.
    • Third, it's about archiving copies, not meddling with the original publications. Hence, the possibility of government censorship doesn't arise. The original publications will be in libraries and independent web sites around the world, wherever the publisher's market reach and preservation back-ups have managed to place them. If a future administration removed certain copies from its archive, for political purposes, that would not affect the originals at all. This point is only worth raising because of some peculiar history. Hard as it is to believe, in the wake of the 2006 version of FRPAA a PR consultant advised the Association of American Publishers (AAP), Elsevier, and Wiley to argue that "Public access equals government censorship", and a short-lived organization created by the Association of American Publishers, called PRISM (Partnership for Research Integrity in Science & Medicine), actually tried it. Details here and here. If selective non-archiving of copies of unaltered originals is a kind of censorship, then those lobbying against an OA archiving mandate like FRPAA want systematic non-archiving and mass censorship.
  4. Under FRPAA, the government will not tell journals what to publish. The government will not conduct peer review or tell journals how to conduct peer review. It will not become a publisher where it wasn't already a publisher. It will not "nationalize science" (whatever that means).
    • Government funding agencies will continue to decide what research they will fund. Because they control significant funds, that's a significant power. But FRPAA didn't create it and defeating FRPAA won't repeal it.
  5. FRPAA mandates deposit in an OA repository, but it does not limit deposits to a single repository.
    • This is true in two senses. First, FRPAA lets federal funding agencies host their own repositories or point grantees to suitable external repositories. Second, even after agencies make their choice, and authors deposit their work in the designated repository, authors are not limited to that repository and may deposit their work in any other repositories as well. The first point means that the designated repositories won't always be controlled by the government. The second point means that, even when they are, authors may deposit in independent repositories without restraint. The policy opens new access doors without closing any old ones.
  6. FRPAA does not mandate OA to the published edition of an article. It applies only to the final version of the author's peer-reviewed manuscript --basically, the version approved by peer review but not yet copy-edited. This is a concession to publishers to preserve library incentives to subscribe.
  7. FRPAA gives publishers the option to replace the author's manuscript in the designated repository with the final published version. This is a solution for publishers who worry about the circulation of multiple versions.
  8. FRPAA does not mandate OA immediately upon publication, but permits embargoes up to six months. This is a concession to publishers and a compromise with the public interest in immediate public access.
    • For the first six months after publication, publishers will have exclusive distribution rights to both the published edition and (at their choice) the final version of the author's peer-reviewed manuscript. After six months, publishers will still have exclusive distribution rights to the published edition, and the only time limit on that exclusivity is the duration of copyright itself (the life of the author plus 70 years). Of course, publishers may voluntarily waive some of these exclusive rights by permitting authors to self-archive their postprints, and today more than 60% of surveyed publishers do just that.
    • The NIH policy allows an embargo of up to 12 months. But the NIH is the outlier here, not FRPAA. Even if the NIH's own field of medicine, the NIH is the almost alone among OA-mandating medical research funders allowing embargoes longer than six months. The vast majority cap embargoes at six months: the Arthritis Research Campaign (UK), British Heart Foundation, Canadian Breast Cancer Research Alliance, Canadian Health Services Research Foundation, Canadian Institutes of Health Research, Dunhill Medical Trust (UK), European Research Council, Cancer Research UK, Chief Scientist Office of the Scottish Executive Health Department, Department of Health (UK), Fonds de la recherche en santé du Québec (Canada), Fund to Promote Scientific Research (Austria), Genome Canada, Heart and Stroke Foundation of Canada, Howard Hughes Medical Institute, Joint Information Systems Committee (UK), Michael Smith Foundation for Health Research (Canada), National Cancer Institute of Canada, National Institute for Health Research (UK), Vetenskapsrådet (Swedish Research Council, Sweden), and the Wellcome Trust (UK).
  9. FRPAA does not provide funds for publication fees at fee-based OA journals.
    • There's a healthy ongoing debate about whether funding agencies should offer to pay these fees. Are they an unaffordable diversion of funds from research or a needed investment in unembargoed OA and peer-reviewed OA journals? (There are publishers and OA proponents on each side of this question.) The debate should continue, but don't let it confuse the issues. Objections to the practice are not objections to FRPAA.
  10. FRPAA does not depend on publisher consent or cooperation. It will either rely on rights retention by authors (like the NIH policy) or on a special license already codified in federal law authorizing federal agencies to disseminate the results of the research they fund.
    • The federal-purpose license and the NIH rights-retention method both give the government a non-exclusive right to disseminate OA copies of the articles. Both methods prevent publishers from acquiring the full bundle of exclusive rights they might have desired and might otherwise have acquired. Both methods entail joint ownership of these articles, with authors or agencies holding some rights and publishers holding other rights. The publishing lobby routinely misrepresents this aspect of the policy, framing the issue as if publishers were "the copyright holders" to these articles, without qualification, and as if the government were expropriating their private property or blocking them from enforcing rights they possess, as opposed to preventing them from acquiring rights they wish to possess. More detail here.
  11. FRPAA does not amend copyright law. It does not seize or invalidate copyrights, prevent government-funded researchers from holding copyrights on their work, prevent them from transferring rights to publishers, or prevent publishers from enforcing the rights they acquire from authors.
  12. Finally, FRPAA makes no assumptions about how many members of the lay public are interested in reading peer-reviewed scientific research articles. It doesn't matter that some members of the lay public won't care to read the articles that will become OA, just as it doesn't matter that some drivers won't care to drive on a given stretch of publicly-funded road. Those who don't care to have access to cutting-edge research will still benefit because doctors, manufacturers, policy-makers, non-profits, and researchers have access. FRPAA will benefit everyone who cares to read this research, and benefit everyone else indirectly by benefiting researchers directly. The purpose is not to widen access for lay readers alone (a straw-man argument of the publishing lobby), or for professionals alone, but to widen access for everyone who can make use of publicly-funded research.


This section is adapted from a couple of Peter Suber's previous articles. This version will be revised to respond to frequently heard misunderstandings.