Open knowledge saves lives. Oppose H.R. 3699!

Note: Although currently not a member of the SPM, I have been involved, since its inception, with Tom Ferguson and others, in the creation of the e-patients white paper . I am also one of the co-founders of the SPM and one of the volunteers who created the infrastructure and policies of JOPM, an Open Access, peer-reviewed publication where articles are published at no cost . Today, I use the privilege offered to the founders of this group to post on e-patients.net in my name only and not representing SPM in any way.
 

Update: ”Support the Open Access Movement: Stop the Research Works Act!”, a new online petition,  has been setup to allow anyone to voice their opposition to the terrible proposed piece of legislation known as H.R. 3699/RWA. Please, spend a few shirt minutes there and let the world know of your opinion!

In 2008, in culmination of years of effort and community interaction, the National Institutes of Health made all federally-funded research publications openly accessible by publishing the NIH Public Access Policy. The purpose of mandating such open access, at a maximum 12 months after publication, was to ensure that the findings are accessible to all their potential users, not just (as in the print era) to those whose institutions can afford subscription access to the journal in which they happened to be published. Opening access maximizes dissemination, a key element to maximize scientific discovery (see the great 2008 presentation by Elias A. Zerhouni, M.D., NIH Director, to the Subcommittee on Courts, the Internet, and Intellectual Property). Of course, ACOR members were highly supportive of the proposed policy and provided a significant number of comments during the initial RFI period.

In 2009 the policy was made permanent by the Omnibus Appropriations Act:

SEC. 217. The Director of the National Institutes of Health (“NIH”) shall require in the current fiscal year and thereafter that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

Compliance with this Policy remains a statutory requirement and a term and condition of the grant award and cooperative agreement, in accordance with the NIH Grants Policy Statement.

Right now, the great gift to the public that is the NIH Public Access Policy, is under serious attack with a proposed piece of legislation. H.R. 3699, aka The Research Works Act (RWA) would prohibit the deposit of the manuscripts mentioned above, seriously impeding the ability of patients and caregivers, researchers, physicians and healthcare professionals to access and use this critical health-related information in a timely manner. Oppose H.R. 3699!

As any person looking for information of significance about cancer knows, having access only to the abstract, and not to the full text article, is insufficient.  Ironically & symptomatically, the 2004  article by Zerhouni, then-director of the NIH, entitled “NIH Public Access Policy” explaining the rationale behind the proposed policy, is behind a paywall and demonstrates the extent of the problem!

In fact I have been working for a while with Peter Murray-Rust from Cambridge, leading thinker behind the Panton Principles & guru of large scale text mining of scientific publications, to push further the extraction of disease-focused information from Open Access articles, because, as Peter says “Open Knowledge Saves Lives! Close Access Can Kill!

What is H.R. 3699 / RWA?

Presented “To ensure the continued publication and integrity of peer-reviewed research works by the private sector” the bill states:

LIMITATION ON FEDERAL AGENCY ACTION.

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

Translated by Stevan Harnad:

If public tax money is used to fund research, that research becomes “private research” once a publisher “adds value” to it by managing the peer review. Since that public research has thereby been transformed into “private research,” and the publisher’s property, the government that funded it with public tax money should not be allowed to require the funded author to make it accessible for free online for those users who cannot afford subscription access.

Because of the highly successful public access policy, millions of Americans now have access to vital health care information from the NIH’s PubMed Central database. Under the current policy, more than 90,000 new full-text biomedical manuscripts are deposited for public accessibility each year. For all of us who are “scholarly poor” — a term coined and defined by Peter Murray-Rust as “denied access to information freely given by scientists in their publications” — the policy may have been the most important piece of legislation favoring the emergence and sustainability of Participatory Medicine. This takes increased significance now that the only inflation in health care spending is the 19% yearly increase in individual spending, forcing people to pay much closer attention to what is being done to them by any professional actor of the medical system. As I wrote  2-1/2 years ago “Will The Great Recession Create Millions of e-Patients?“, what I had not imagined was the devastating impact of local budget squeezes on public libraries’ hours of operations, which have been severely hit across the nation. Since publishers use the access to public libraries as an excuse to close universal internet access, their argument looks pretty weak for the foreseeable future.

Before reading further, remember the definition of Participatory Medicine:

a movement in which networked patients shift from being mere passengers to responsible drivers of their health, and in which providers encourage and value them as full partners.

How can you be a responsible driver of your health if you don’t have direct access to all information? That’s why Dave has been fighting for his damn data and similarly why ACOR has been engaged in multiple efforts to maximize the dissemination of any and all scientific publications that relates to an ACOR group condition.

Seeing a corrupt travesty of the democratic process used today to promote the interests of a few gatekeepers at the expense of millions of people is very disturbing. The NIH and other agencies must be allowed to ensure timely, public access to the results of research funded with taxpayer dollars. Please oppose H.R. 3699. You’ll be in great company!

For example, Tim O’Reilly, who has been a main witness of the power of Openness in computing  finds H.R. 3699 objectionable:

I oppose H.R. 3699 (“To ensure the continued publication and integrity of peer-reviewed research works by the private sector.”) because it is a classic example of “regulatory capture” by an industry that is feeding off of government largesse.

It is a frontal attack on the open access movement, which scientists are increasingly seeing as critical to the further progress of science.

[…]I strongly suggest that the authors of this bill consult the Panton Principles, put forward by a group of scientists at Oxford University, or read Michael Nielsen’s new book, Reinventing Discovery, about the importance of open access to the future of science.

Please don’t write laws that protect 19th century industries against 21st-century disruption!

Tim’s last sentence may need some explanation, which thankfully has been provided by Microsoft researcher and grand guru of social media’s influence on the youth, danah boyd, in her December blog post Save Scholarly Ideas, Not the Publishing Industry (a rant):

The scholarly publishing industry used to offer a service. It used to be about making sure that knowledge was shared as broadly as possible to those who would find it valuable using the available means of distribution: packaged paper objects shipped through mail to libraries and individuals. It made a profit off of serving an audience. These days, the scholarly publishing industry operates as a gatekeeper, driven more by profits than by the desire to share information as widely as possible. It stopped innovating and started resting on its laurels. And the worst part about it? Scholars have bent over and let that industry continuously violate them and the university libraries that support them. [..]

WTF? How did academia become so risk-adverse? The whole point of tenure was to protect radical thinking. But where is the radicalism in academia?

Ironically, of course, it’s the government who is trying to push back against the scholarly publishing’s stranglehold on scholarly knowledge. [..]

Please, I beg you, regardless of whether or not we can save a dying industry, let’s collectively figure out how to save the value that prompted its creation: making scholarly knowledge widely accessible.

In all fairness I must present the opinion of those who think H.R. 3699 is a step forward. You may not be entirely surprised that the most supportive is none other than the Association of American Publishers and its Professional and Scholarly Division. This is what they had to say: 

The legislation is aimed at preventing regulatory interference with private-sector research publishers in the production, peer review and publication of scientific, medical, technical, humanities, legal and scholarly journal articles. This sector represents over 1.3 million articles published annually which report on, analyze and interpret original research; more than 30,000 U.S. workers; and millions of dollars invested by publishers in staff, editorial, technological, capital and operational funding of independent peer review by specialized experts. North American-based science journal publishers alone account for 45% of all peer-reviewed papers published annually for researchers worldwide. [..]

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 receiving no such funding. It would also prevent non-government authors from being required to agree to such free distribution of these works. Additionally, it would preempt federal agencies’ planned funding, development and back-office administration of their own electronic repositories for such works, which would duplicate existing copyright-protected systems and unfairly compete with established university, society and commercial publishers. [..]

Journal articles are widely available in major academic centers, public libraries, universities, interlibrary loan programs and online databases. Many academic, professional and business organizations provide staffs and members with access to such content.

 

So, here we have it! I’ll let others describe what stands behind the term “private-sector research publisher” here and here (good reads!). What strikes me is that in the entire press release there is not a single mention of the American people at large. The publishers want to stop the public from having easy access to scientific articles. The last paragraph really glows when paralleled with Tim’s last sentence “Please don’t write laws that protect 19th century industries against 21st-century disruption!”

To add insult to injury look at the two co-sponsors of the bill.

Darell Issa is the wealthiest member of congress, with an estimated fortune of between $165 million and $451 million in 2010. I doubt that paying $32 to $40 for a scientific article makes a dent in his monthly spending, unlike the situation for most Americans. What is completely incomprehensible is that Darell Issa is avowedly supporting Openness. His Twitter page says it all: “I also greatly enjoy an #OPEN, accessible & uncensored internet.” The Atlantic wondered “Why Is Open-Internet Champion Darrell Issa Supporting an Attack on Open Science?” a post ending with “And that’s just it. If the goal is protecting the publishing industry, this bill’s a winner. But for those interested in improving access to scientific research, they should stay far, far away.” Do you start to see a trend in the objections to this nasty piece of legislation?

The 2nd co-sponsor, Democrat Carolyn Maloney, is the largest recipient of contributions from the publishing industry. Michael Eisen discovered via MapLight, a site tracking political contributions, that Dutch publisher Reed Elsevier and its senior executives made 31 contributions to members of the House in 2011, of which 12 went to Representative Maloney. This includes contributions from 11 senior executives or partners, only one of whom is a resident of her district.

Why should e-patients oppose H.R. 3699?

Michael Eisen said it best:

It is inexcusable that a simple idea – that no American should be denied access to biomedical research their tax dollars paid to produce – could be scuttled by a greedy publisher who bought access to a member of Congress.

So I urge you to call/write/email/tweet Representative Maloney today, and tell her you support taxpayer access to biomedical research results. Ask her why she wants cancer patients to pay Elsevier $25 to access articles they’ve already paid for. And demand that she withdraw H.R. 3699. [emphasis added]

Representative Maloney:

Twitter: @RepMaloney @CarolynBMaloney

Phone: 202-225-7944

FAX: 202-225-4709

Email: Use this form

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Comments

20 Responses to “Open knowledge saves lives. Oppose H.R. 3699!”

  1. [...] Eisen -ALA’s opposition to the bill -Blog post from The Digital Shift (Library Journal) -Blog post from ePatients.net -Blog post from Scientific American -Blog post from the Society Pages -Open [...]

  2. See:
    “Research Works Act H.R.3699:
    The Private Publishing Tail Trying To Wag The Public Research Dog, Yet Again”

    http://openaccess.eprints.org/index.php?/archives/867-guid.html

    EXCERPT:

    The US Research Works Act (H.R.3699): “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that — (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.”

    Translation and Comments:

    “If public tax money is used to fund research, that research becomes “private research” once a publisher “adds value” to it by managing the peer review.”

    [Comment: Researchers do the peer review for the publisher for free, just as researchers give their papers to the publisher for free, together with the exclusive right to sell subscriptions to it, on-paper and online, seeking and receiving no fee or royalty in return].

    “Since that public research has thereby been transformed into “private research,” and the publisher’s property, the government that funded it with public tax money should not be allowed to require the funded author to make it accessible for free online for those users who cannot afford subscription access.”

    [Comment: The author's sole purpose in doing and publishing the research, without seeking any fee or royalties, is so that all potential users can access, use and build upon it, in further research and applications, to the benefit of the public that funded it; this is also the sole purpose for which public tax money is used to fund research.]”

    H.R. 3699 misunderstands the secondary, service role that peer-reviewed research journal publishing plays in US research and development and its (public) funding.

    It is a huge miscalculation to weigh the potential gains or losses from providing or not providing open access to publicly funded research in terms of gains or losses to the publishing industry: Lost or delayed research progress mean losses to the growth and productivity of both basic research and the vast R&D industry in all fields, and hence losses to the US economy as a whole.

    What needs to be done about public access to peer-reviewed scholarly publications resulting from federally funded research?

    The minimum policy is for all US federal funders to mandate (require), as a condition for receiving public funding for research, that: (i) the fundee’s revised, accepted refereed final draft of (ii) all refereed journal articles resulting from the funded research must be (iii) deposited immediately upon acceptance for publication (iv) in the fundee’’s institutional repository, with (v) access to the deposit made free for all (OA) immediately (no OA embargo) wherever possible (over 60% of journals already endorse immediate gratis OA self-archiving), and at the latest after a 6-month embargo on OA.

    It is the above policy that H.R.3699 is attempting to make illegal…

    http://openaccess.eprints.org/index.php?/archives/867-guid.html

  3. Joe McCarthy says:

    Here’s a link to the members of the House Committee on Oversight and Government Reform, to which the bill is currently referred. Interested parties who are constituents of one of these members may have more influence by contacting them directly (vs. the sponsor or co-sponsor).

  4. If you are interested in figuring out why a Democrat representative of a liberal district of NYC would support such a terrible piece of legislation, read on.

    Michael Eisen, who wrote the first post showing a probable personal financial causality has a chilling follow-up post.

    Entitled “Plagiarist or Puppet? US Rep. Carolyn Maloney’s reprehensible defense of Elsevier’s Research Works Act”, the post contains extraordinary information showing possible collusion between Rep. Carolyn Maloney and executives at Reed Elsevier in the form of amazingly similar public responses to the loud outcry the proposed “Research Work Act” is generating.

    Here is the wikipedia definition of collusion, BTW:

    In the study of economics and market competition, collusion takes place within an industry when rival companies cooperate for their mutual benefit. Collusion most often takes place within the market structure of oligopoly, where the decision of a few firms to collude can significantly impact the market as a whole. Cartels are a special case of explicit collusion. Collusion which is not overt, on the other hand, is known as tacit collusion.

    Strong words indeed. But how else can you look at the verifiable documents that Michael present in his post and which make him say:

    “Of course I don’t exactly how it came to be that a member of the US Congress was sending out emails defending a bill that were apparently written by the same person who was defending the same bill a week earlier on my blog verifiably identified as the head PR person for a company who would be a major beneficiary of said bill, and whose senior executives from all across the country just happened to have made lot of recent donations to said member of Congress. I’m sure it’s all just a coincidence.

    Yeah, right. The comments on my blog were clearly Reller – his writing was natural and engaged directly with what other people were saying, so I’m sure he wasn’t just spouting prepared text. There are only two viable explanations for how essentially the same text ended up in Maloney’s letter. Either she copied it from my blog without citing its source (a clear violation of the Creative Commons Attribution license that governs all content on the site), or, Reller wrote the letter, either directly, or indirectly by preparing text that Maloney’s office could use to defend the bill. So Rep. Maloney is a plagiarist or an Elsevier puppet.”

    You can read all of Michael’s post here

  5. [...] ourselves in this, but, as researchers, we also see the desperate need for these changes. Perhaps Tim O’Reilly said it best: Please don’t write laws that protect 19th century industries against 21st-century [...]

  6. @timoreilly has a great post on the problems with SOPA/PIPA.

    As I commented there, I see many parallels w/ RWA/HR3699:

    I am increasingly impressed of the parallels in SOPA/PIPA and RWA (HR3699). In both cases, it is obvious that piracy is not the real problem but a symptom and that both proposed laws are protecting the wrong people!

    Content distributing industries that were successful in separating most of the profits away from the original producers are fighting hard to keep their monopolistic, collusive methods of profit generation alive. The internet is thousands of times more efficient as a content delivery system than any previous one and, as you have proven over the last 2 decades, those who embrace the network effect can build fantastic companies. while helping disseminating human knowledge widely and cheaply.

    Jan 18 SOPA Blackout day (http://sopablackout.org/) should be expanded to include RWA and become SOPA/RWA Blackout day.

  7. [...] Frydman’s 12 January 2012 article, “Open knowledge saves lives. Oppose H.R. 3699!,” provides an excellent overview of this [...]

  8. Apparently one cannot contact her without being a resident of her district. When I go to the link to email her I get told that. I find the whole situation appalling, but I do not see how it can be stalled at this point. Big money already owns the vote in my opinion.

    • Elizabeth,

      you can use this URL to write a letter to your representative, just like a few hundred people have done so far. These letters have real significance because they will impact your representative to oppose or support the bill.

      Again, the URL for writing a letter to your representative is https://www.popvox.com/bills/us/112/hr3699

      • Joe McCarthy says:

        While I love the goal behind PopVox – encouraging people to contact their elected officials – I don’t believe it their service is very effective.

        The Electronic Frontier Foundation has an excellent factsheet on contacting Congress (& other policymakers), which includes the following weighting scheme:

        In order of MOST to LEAST effective, these are the means of contacting legislators:

        1. personal visit to the legislator’s Washington DC office or home-state office
        2. personally handwritten but LEGIBLE short letter
        3. personally typewritten or word-processed letter
        4. phone call to a key staffer in the office
        5. phone call to the reception staffers in the office
        6. personally written fax
        7. an obvious form letter or fax
        8. personally written e-mail
        9. an obvious form e-mail

        Essentially, the higher the perceived effort expended on the part of the constituent (or other person making contact), the higher the assessed importance of the contact.

        PopVox, by making contact very easy (including a form letter), thereby renders the contact relatively low value.

  9. [...] see also Why Google is ditching search (CNet) • Open knowledge saves lives. Oppose H.R. 3699! (E Patients) see also Clumsy medics in Mexico City drop donor heart – video [...]

  10. Kate Murphy says:

    I’ve been part of ACOR, founded by Gilles Frydmann, for over 15 years. Our goal is to provide solid, evidence-based information to cancer patients — not always easy.

    About 10 years ago, I began blogging colorectal cancer research studies to make them more understandable and more available for patients and their decisions.

    Patients were getting their information screened through the media, lots of hype, not much clarity. That hasn’t changed.

    I used to read abstracts, but soon learned that abstracts don’t tell the whole story. To support and help patients I need the whole journal article.

    Not having thirty bucks each for the several articles I read and think about every day, once a week or so, I get into my car, fill it up with gas at $3.55 a gallon, drive 20 miles to the medical library supported by our state taxes, pay to park, and read the most valuable articles to blog them.

    Even now, when publicly supported research needs to be published within a year, new articles are usually not available for several months, long after the media have mangled them, hyping cures based on cells and mice.

    Making access even more difficult for me and the patients I write for is outrageous.

    I am a thirty year cancer survivor.

  11. [...] medical knowledge saves lives: Oppose H.R. 3699 Here’s a terrific article by Gilles Frydman at e-patients.net advocating for opposition to H.R. 3699, aka The Research Works Act (RWA). The bill before Congress [...]

  12. Yet another data point debunking Rep Maloney specious explanation about the need for the bill to protect the business of the scientific publishers:

    Wiley Annual Report 2011: costs down, profits up

    The John Wiley and Sons 2011 Annual Report is now available. From the Overview, in brief, revenue from Wiley’s Scientific, Technical, Medical and Scholarly division (STMS) increased slightly to just under a billion U.S., while direct contribution to profit rose from 5 to 9% (for a direct contribution to profit of $425 million, or 42.5%) – from the Detailed Financials, p. 22.
    [..]
    note that the Wiley profit rate of 42.5% is an understatement of the total profit from Wiley journal subscription revenue. This is because close to half of Wiley journals are published on behalf of scholarly societies.
    [..]
    The actual percentage of Wiley revenue that goes to profit for both Wiley and the societies is somewhere between the 42.5% and the Wiley Gross Profit Rate of 73.1% (see page 22 of the Detailed Financials. That’s not a typo – this is a gross profit rate of seventy three point one percent). [Emphasis added]

  13. I oppose HR 3699. Research which is done on the public dime should be available to the public without additional charge. A little bit more knowledge might have saved, or at least prolonged my father’s productive life, back in the early eighties. It is time for this. PM

  14. [...] Open knowledge saves lives. Oppose H.R. 3699! by Gilles [...]

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