Recent Developments in US Federal Open Access Policies: FASTR Moves Slower

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On July 26, H.R. 3427, the Fair Access to Science and Technology Research Act (FASTR), was reintroduced in the US House of Representatives by Michael Doyle [D-PA-14]. This was followed by a similar bill in the Senate, S. 1701, reintroduced there on August 2 by Sen. John Cornyn [R-TX]. Essentially similar versions of these bills have been placed in the legislative hopper for three sessions now, introduced by mostly the same Senators and Representatives.

In 2013, under the Obama Administration, the introduction of FASTR was accompanied by an Office of Science and Technology Policy (OSTP) policy guidance memorandum which required all Federal agencies with annual R&D award budgets over $100 million to develop plans to support “increased public access.”

Will the Trump White House support FASTR?

There is no evidence that this remains a priority of the current Administration, and indeed there are reasons to believe that the Trump White House might not be inclined to support it.  As of September 13, 2017, the OSTP guidance document, “Increasing Access to the Results of Federally Funded Scientific Research” (2013) no longer appears on the White House web site. That said, as of now, the public access mandates (e.g., NIH, NSF) already in place have not been rescinded or revised.

How FASTR addresses embargoes

One key question addressed in FASTR is that of ‘embargoes’, referring to the time after which a research output resulting from Federal funds, such as an article or a data set, needs to be made “publicly available to every scientist, physician, educator, and citizen at home, in school, or in a library… .”

The House version envisions a 6-month embargo; the Senate version, 12 months. Currently, most US agencies follow the 12-month precedent set by the NIH.  The difference between a 6-month and a 12-month embargo is considered crucially important by many publishers, the former being problematic (because it means the free version competes with the paid, published version before the publication has had a reasonable time for sale in the marketplace) and the latter, longer, time relatively bearable. (It should be noted that these are the reactions in the science publishing industry; in the humanities and some of the social sciences, even 12 months is considered much too short.)

Much of the discussion of FASTR and other such policy directives — sometimes referred to as ‘mandates’ — centers around the issue of these embargoes. That said, there still remains an additional concern around a potential requirement that materials be made available under an “open access” (or “OA”) license which will essentially allow commercial reuse by anyone, without separate consent of the author or other rightsholder, even in competition with that author or other rightsholder.

In July, however, the OMB hosted a “Roundtable on Open Data,” which may be taken as a signal of continuing support for “Federal Open Data.” Of course, the openness of Federal data can easily be construed as a pro-business policy.

Finally, major research funders, such as the Wellcome Trust and the Gates Foundation, now include OA requirements (often including free commercial as well as non-commercial reuse) as part of their conditions of grant support. These do not rise to the level of government-required mandates, but these funders are highly influential.

While certainly a 6-month embargo period would bring the viability of some journals into question, ought publishers accede to the inevitable at this point and accept that a 12-month embargo is the best that they can hope for in the U.S. legal environment? Is this a fight still worth having? There is public good resulting from openness, but how does that balance with the public good of having viable business models?

Publishers are concerned that the material value they add to the research publishing process is under-recognized. In a classic article by Kent Anderson for Scholarly Kitchen, he enumerated “96 Things Publishers Do.” A model that bleeds the money out of this system, as would a 6-month embargo, obviously would impair the ability of publishers to add this unique value. Acceding to such a move at the insistence of the government and some funders, might come back to bite the scholarly and research community for it could place the burden of such needful tasks as peer-review, copyediting and fact-checking, squarely on the backs of the public, or of the community of researchers themselves.

The demand for open science is valid; equally so is the expectation of quality science.

What happens next?

What actions are appropriate and prudent at this time? Well, there’s no campaign called “Not so fast, FASTR.” In its absence, interested parties can call or write their Senators and Representatives to express any concerns they have with these Bills in their current form. The OSTP doesn’t have any open comment period underway at the moment, but presumably one will be forthcoming at some point; this will provide another opportunity to speak up and weigh in

 

Roy Kaufman

Author: Roy Kaufman

Roy Kaufman is CCC's managing director of new ventures, responsible for expanding service capabilities as CCC moves into new markets and services. He is a member of organizations including the Bar of the State of New York and the Copyright Committee of the International Publishers Association. Roy is Editor-in-Chief of Art Law Handbook and has authored two books on publishing contract law.

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