I'm not planning to jump on the bandwagon of the SPARC advocacy machine's drive to defeat the Fair Copyright in Research Works Act (what an abysmally named bill!) It's not that I'm necessarily opposed to the NIH Public Access Policy or in favor of HR 801, just that I think that there is much less to the former and a bit more of interest in the latter, than the OA lobby proclaims.
At UCLA, I referred to this Santayana quote, which I used to use for the motto on my blog:
Skepticism is the chastity of the intellect, and it is shameful to surrender it too soon or to the first comer.
I think of skepticism as a discipline, and part of that discipline is listening very critically to the arguments of the people whose conclusions you agree with, and very generously to the people whose conclusions you are inclined to oppose. It keeps you intellectually honest. There hasn't been nearly enough of that in this debate.
SPARC has been tremendously successfully in equating support for the NIH Policy with support for open access, and vice versa. A blog post at Public Knowledge refers to HR 801 as an Anti-Open Access Bill and this morning I received an invitation to join a Facebook group called "Oppose Bill HR 801: Repealing Open Access to NIH-funded Science."
But it is certainly possible to be very supportive of providing free access to peer reviewed literature and still think that the NIH Public Access Policy is lousy legislation. An article in the latest issue of the Journal of the Medical Library Association points out that from a sample of articles taken from that database in 2005, 26% were freely available, with 40% of those coming from society publishers. As of this morning, there are 1,806,192 articles freely available on the Highwire Press site -- the full published articles, I might emphasize, not just the final manuscript version. And it is worth remembering that of the 80,000 articles per year that the proponents of the NIH Policy claim are "freed," a significant proportion of those are published in journals that are making those articles freely available in any case.
The people who are leading the fight against the NIH Policy are clearly and demonstrably not opposed to making peer reviewed research articles (not just those funded by NIH) freely available, and I assume that the people leading the charge against them know that.
So if the fight isn't really about public access, what is it about? That's easy, if one is paying attention. It's about control. Who should get to decide the terms under which articles are made freely available?
This is most clearly demonstrated if one bothers to actually read the testimony from the original hearings from last September (when it was HR 6845), along with Heather Joseph's follow-up letter to Representative Berman. In his testimony, Marty Frank, who has been the most prominent voice in opposition to the NIH Policy, points to the freely available articles on Highwire and elsewhere as evidence that journal publishers are not opposed to making articles freely available. But he argues that a one sized solution is not appropriate, that different journals have different needs, and that the interests of science are best served if we leave it up to the journal publishers (and here he is speaking primarily about the scholarly societies) to set their own embargoes and establish their own terms. He claims that the NIH policy is unwarranted government interference. In her letter to Berman, Joseph addresses this directly. While it is true, she says, that many of the Highwire Journals have embargoes of 12 months or less, "There is no requirement for them to do so and therefore no guarantee that access will continue to be provided permanently."
So the argument isn't about making articles freely available -- Joseph and Frank agree on the importance and necessity of doing that. It's about whether or not we should enable the government to dictate the terms under which this happens. But this is not the way that SPARC has framed the public debate.
For me, personally, I'm somewhat more inclined to give the government the edge here. Having started my career at the National Library of Medicine and being steeped in the history of that amazing institution, if I had to choose between relying on NIH/NLM to maintain the permanent archive of research publishing or relying on independent organizations, worthy though they might be, I'd go with NLM. But that doesn't mean that I must therefore think that the NIH Public Access Policy, as currently implemented, is the best way to do that.
And this brings us to HR 801. The NIH Policy relies on the fact that publishers are going to continue to manage the peer review process. This is implicit in the whole thing. "Yes, we want taxpayers to have access to the results of government funded research, but only after the reports of that research have been vetted by a non-governmental organization." The independent peer review process is essential to the philosophy underpinning the NIH Policy, and it depends on the publishers continuing to manage that process.
Now whether you think that the mandate creates a high or low risk to the financial viability of any individual publisher, it clearly injects some risk. And NIH's position appears to be that "we (the government) will now require publishers to accept some additional financial risk, while continuing to provide the services of peer review and in exchange for that, we will give you....?" Nada.
The response to that is HR 801. The message here is, "If you are going to require us to continue to provide peer review to underlie the scholarly publishing system, then it isn't fair for you to make publicly available versions of our articles available to compete with us. This interferes with our right to control the distribution of our copyrighted material, as provided to us under copyright law." Note that the claim here is not that the publishers have a copyright interest in the author's manuscript version, but that by putting up a competing version, NIH is infringing on their right to control the distribution of their version of the article to which they clearly do hold the copyright. I have no idea if that claim would hold up in court, but it is a different argument from the one that the opponents of HR 801 have been so busily dismissing.
This certainly is an important issue of public policy. But it isn't about making articles freely available. It's about the role of government in the scholarly publishing process and whether or not the government should have the right to take advantage of independently funded peer review without providing anything in return. It's about whether or not the relationship between government, the research community and publishers should be adversarial or collaborative (as John Willinsky suggests it needs to be at the end of his recent article in PLoS).
That would be a discussion worth having.