## March 8, 2009

### Banning Open Access II

#### Posted by John Baez

Remember John Conyer’s Fair Copyright in Research Works Act, which would ban the National Institute of Health from making taxpayer-funded research freely accessible, and also ban other federal agencies from adopting open-access policies?

Now Conyers has made a hilarious argument in favor of this bill, over at the Huffington Post.

It began when Lawrence Lessig and Michael Eisen wrote an article entitled “Is Conyers Shilling for Special Interests?”, ripping into Conyers as follows:

Right now, there’s a proposal in Congress to forbid the government from requiring scientists who receive taxpayer funds for medical research to publish their findings openly on the Internet.

This ban on “open access publishing” (which is currently required) would result in a lot of government-funded research being published exclusively in for-profit journals — inaccessible to the general public.

Why on earth would anyone propose this? A new report by transparency group MAPLight.org shows that sponsors of this bill — led by Rep. John Conyers — received twice as much money from the publishing industry as those on the relevant committee who are not sponsors.

This is exactly the kind of money-for-influence scheme that constantly happens behind our backs and erodes the public’s trust in government.

Yesterday Conyers struck back. Here’s the part that made me crack up. The last sentence is the funny one:

… on the narrow merits of the issue, Professor Lessig and proponents of “open access” make a credible argument that requiring open publishing of government-funded research information furthers scientific inquiry. They speak out for important values and I respect their position.

While this approach appears to further and enhance access to scientific works, opponents argue that, in reality, it reverses a long-standing and highly successful copyright policy for federally-funded work and sets a precedent that will have significant negative consequences for scientific research.

These opponents argue that scientific journals expend their own, non-federal resources to manage the peer review process, where experts review academic publications. This process is critical because it provides the quality check against incorrect, reckless, and fraudulent science and furthers the overall quality and vigor of modern scientific debate. Journal publishers organize and pay for peer review with the proceeds they receive from the sale of subscriptions to their journals, thereby adding considerable value to the original manuscripts of research scientists.

Do you see why this is hilarious?

Posted at March 8, 2009 3:08 AM UTC

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### Re: Banning Open Access II

I want my money!

Posted by: timur on March 8, 2009 6:47 AM | Permalink | Reply to this

### Yetter’s letters

The first being doomsday scenario and the second more nuanced - almost doomsday.

Posted by: jim stasheff on March 8, 2009 1:20 PM | Permalink | Reply to this

### Re: Yetter’s letters

Yetter’s initial description of the bill was quite inaccurate: he said “John Conyers (D-MI) want to require Federally funded research be published only in journals, not on arXiv.” This echoed a similar inaccurate description by Phil Plait at the Bad Astronomy blog.

In fact, as I explained, it would ban US agencies from mandating open access to federally funded research. So, it would knock down the National Institute of Health’s public access policy, and prevent other agencies from adopting similar policies.

Here’s what the bill actually says:

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the Fair Copyright in Research Works Act’.

SEC. 2. LIMITATIONS ON FEDERAL GOVERNMENT REGARDING EXTRINSIC WORKS.

(a) In General- Section 201 of title 17, United States Code, is amended by adding at the end the following new subsection:

‘(f) Limitations on the Federal Government-

‘(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement–

‘(A) impose or cause the imposition of any term or condition that–

‘(i) requires the transfer or license to or for a Federal agency of–

‘(I) any right provided under paragraph (3), (4), or (5) of section 106 in an extrinsic work; or

‘(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

‘(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

‘(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

‘(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.

Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.

‘(2) CONSTRUCTION-

‘(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

‘(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

‘(3) DEFINITIONS- In this subsection:

‘(A) EXTRINSIC WORK- The term extrinsic work’ means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and–

‘(i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party; or

‘(ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party.

‘(B) FEDERAL AGENCY- The term ‘Federal agency’ means any department, agency, or instrumentality of the United States Government.

‘(C) FUNDING AGREEMENT- The term ‘funding agreement’ means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.’.

(b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.

(c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register’s views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.

(d) Definitions- In this section:

(1) EXTRINSIC WORK; FEDERAL AGENCY; FUNDING AGREEMENT- The terms ‘extrinsic work’, ‘Federal agency’, and ‘funding agreement’ have the meanings given those terms in section 201(f)(3) of title 17, United States Code, as added by subsection (a) of this section.

(2) APPROPRIATE CONGRESSIONAL COMMITTEES- The term ‘appropriate congressional committees’ means the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives and the Committee on the Judiciary and the Committee on Appropriations of the Senate.

Posted by: John Baez on March 8, 2009 5:21 PM | Permalink | Reply to this

### Re: Yetter’s letters

Thanks for doing our homework.

jim

Posted by: jim stasheff on March 8, 2009 8:14 PM | Permalink | Reply to this

### Re: Banning Open Access II

I’m sorry if I stirred up a hornet’s nest with my first e-mail. The account of ‘banning open access’ I first read didn’t make it clear that what was really meant was ‘banning required open access publishing’.

Even that is a stupid idea.

In response to Conyers’ “defense”, I just tossed off the following to his office. (Alas, I forgot, in biomed, the publishers even charge for the privilege of having an article published, which makes matters even worse.)

Dear Congressman Conyers:

You are quoted in the Huffington Post, speaking in defense of your proposal to ban open access requirements in the publication of Federally funded research as saying, “Journal publishers organize and pay for peer review with the proceeds they receive from the sale of subscriptions to their journals, thereby adding considerable value to the original manuscripts of research scientists.”

In fact, scientific publishers do not pay for peer review: the expert editors and peer reviewers always provide their services for free as a service to the scientific community.

The business model used by scientific publishers–they get their content for free from scientists, get the peer reviewing done for free, get the scientific aspects of the editorial work done for free, and even in some fields, get the type-setting done for free by providing formatting macros that authors must use to pre-format their papers, then sell the products back to the universities that employ those who provided the content and editing (and maybe even type-setting)–stands as the most egregious conceivable example of what Marx called ‘the alienation of workers from the product of their labor’. It happens that I am a conservative Republican. If all of capitalism was able to run a business model of the sort scientific publishers run, I’d be a Marxist.

In mathematics, physics and computer science, we have all, voluntarily, moved to an open access model. We pre-publish our research on arXiv, a site partially funded by the NSF, without any federal requirement to do so. The result has been an acceleration of progress in our fields. The NIH has good reason to believe that changing the culture of biomedical science to be more like that of mathematics will result in faster discovery of cures. Unfortunately biomedical research has the opposite sort of culture–secrecy until the final version is published. Open access requirements were specifically designed to change that and speed up the benefits of biomedical research.

I know you object when GOP Congressmen shill for Big Oil, or Big Pharma. Stop shilling for Big SciPub. Pull the “Fair Copyright in Research Works Act.”

Sincerely,
David Yetter
Professor of Mathematics
Dept. of Mathematics
Kansas State University

Posted by: David Yetter on March 8, 2009 5:54 PM | Permalink | Reply to this

### Re: Banning Open Access II

Nice letter, David! How did you send it to Conyers? I’d like to do something similar. I’ve heard that congressional staff count printed letters as more significant than emails.

Posted by: John Baez on March 8, 2009 6:02 PM | Permalink | Reply to this

### Re: Banning Open Access II

One good thing is that Harold Varmus, who pushed for the NIH public access policy when he was the head of that agency, is now helping run Obama’s Presidential Council of Advisers on Science and Technology.

Posted by: John Baez on March 8, 2009 5:56 PM | Permalink | Reply to this

### Re: Banning Open Access II

Check out Michael Eisen’s reply to John Conyer’s defense of his bill.

If you still don’t get why I think this sentence is hilarious:

Journal publishers organize and pay for peer review with the proceeds they receive from the sale of subscriptions to their journals, thereby adding considerable value to the original manuscripts of research scientists.

then try Eisen’s explanation:

… publishers do not pay for peer review. Peer review is carried out by members of the research community, who receive no remuneration for this important contribution to the scientific process and the integrity of the scientific literature. Indeed, since the salaries of most American scientists are paid directly or indirectly by the US government, the peer review process can be viewed as a massive Federal subsidy to publishers. That some publishers - who not only get their most important source of skilled labor paid for by taxpayers but are also publishing research that is the product of tens of billions of annual taxpayer dollars - are unwilling to provide the taxpayers with a copy of the papers they paid to produce and review is unconscionable.

Anyone interested in this issue should read all of Eisen’s remarks. They go further than just correcting Conyer’s misimpression of how science publishing works.

For example, Eisen writes:

The Copyright Act of 1976, which sets out most aspects of current copyright law, further undermines Conyers’ position that the NIH policy is incompatible with copyright. In Section 105 of the act Congress unambiguously recognizes the public right to have access to the product of federal research when they state that “Copyright protection under this title is not available for any work of the United States Government”.

I doubt all federally funded science research counts as a ‘work of the United States Government’, but I’m not quite sure how the line gets drawn. I put a lot of NASA photos in This Week’s Finds, and generally NASA seems to allow and encourage that. But I’m not sure if this freedom applies to all work done at the Jet Propulsion Laboratory, for example.

Posted by: John Baez on March 9, 2009 12:49 AM | Permalink | Reply to this

### Re: Banning Open Access II

I want to reinterate what I said on Walt’s blog. These statements seemed to have been erased there, and they are a bit off topic. However, they point to a difference of culture.

We received news via various high administrators that the NIH was posting challenge grants.

Looking to the link for STEM areas , we see one item for Science Technology, Engineering, and Math on page 44 of a 52 page document. Many, if not all, of the other research calls could, and should benefit by adding a statistician as a collaborator on the grant. However, the lonely item that addresses STEM is this:
“Technology,
Engineering and
Mathematics Education
(STEM)
12-OD-101* Efficacy of educational approaches toward promoting STEM
competencies. Research on efficacy testing of educational pedagogy, tools, and
curricula (both classroom and non-classroom approaches) that are targeted at improving
student understanding of science, technology, engineering, and math (STEM) concepts.
Contact: Dr. Bruce Fuchs, 301-402-5225, fuchsb@mail.nih.gov”

Studying pedagogy might be a good idea. It seems to me that the problems in pedagogy have been studied to death with very poor scientific results. The one item that has been proven to excite students about science is an engaged and interested faculty. Some teachers use big-explosions to good effect. Others have students cut out the guts of frogs. Mathematicians usually only have, “Let me show you this; it is really cool.”

On the other hand, research in the mathematical sciences cost a fraction of other scientific research. Also, an over-arching research initiative in statistics would probably benefit the mission of the NIH more than the piecemeal approach to recruiting a statistician to be a coPI. The NIH budget dwarfs that of the NSF. But NIH sees no mandate to support mathematical research.

Even so, DNA computing, sequencing and lattice constructions, the Potts model, etc, etc. are all important to the biological sciences.

I guess there are two cultures: the culture of science and the culture of money.

Posted by: Scott Carter on March 9, 2009 3:52 AM | Permalink | Reply to this

### Re: Banning Open Access II

two cultures? science and money
see
Lab Test: Who Profits From Scientific Research?
By William Deresiewicz

This article appeared in the March 16, 2009 edition of The Nation.
February 25, 2009

The most striking thing about the way we talk about science these days is just how little we talk about it at all. No large fundamental question focuses our attention on the adventure of discovery; no grand public project stirs our reflection on the perils of technological control. Nothing for decades has approached the imaginative impact of relativity or the double helix, the moon landing or the bomb. Even genetic research, which generates so much attention in the media, is understood more as a medical issue–news you can use–than an issue of science as such. And if we talk about science very little, we talk about the scientist even less. The old stereotypes, once so evocative–the genius, the benefactor, the madman–have lost their potency. No Einstein or Pasteur anymore, no Frankenstein or Strangelove. Scientific research has become so highly collaborative, so much a group endeavor, that the investigators have been eclipsed by the explainers–the Sagans and Pinkers and Gladwells. Science has become so pervasive a part of the way things run that, like the servants in a Victorian household, the people who actually make it happen have disappeared into the wallpaper.

The Scientific Life: A Moral History of a Late Modern Vocation
by Steven Shapin

John Trumpbour: Remembering a historian of the left, an ideological warrior against empire, witness to India’s anticolonial struggles and a persuasive critic of torture and government oppression.

William Deresiewicz: Does the profit motive distort and degrade the unpredictable path of scientific discovery?

William Deresiewicz: James Wood may be the best literary critic we have, but the status he enjoys reveals just how far we have fallen.

Steven Shapin’s new book makes those people visible again, gives them a history and clears away the preconceptions with which the larger culture has surrounded them. Shapin’s earlier studies–Leviathan and the Air-Pump, A Social History of Truth and The Scientific Revolution–concentrated on the early years of modern science, the age of Galileo and Newton. Now he turns his attention to the past two centuries, bringing his story all the way to the present–or even, since scientists are understood to be the people, as he says, who create the future, a little further. Combining historical scholarship with sociological research, Shapin reveals the often sharp discrepancies between cultural assumptions about the scientific life and the attitudes of scientists themselves. Ideals such as creativity, integrity and autonomy are put to the test of actual experience. But though the book’s historical sections are consistently interesting, it seems to this lay reader that Shapin’s approach to contemporary institutional structures avoids most of the important questions about the ways scientists go about their business today and the effect these arrangements have on the kind of science–and therefore the kind of future–that we end up getting.

Posted by: jim stasheff on March 9, 2009 3:26 PM | Permalink | Reply to this

### Re: Banning Open Access II

“… thereby adding considerable value to the original manuscripts of research scientists.”

It’s a pity that Einstein wasn’t peer reviewed, or we’d be zooming all over the galaxy in starships or spacewarps by now.

Posted by: Jonathan Vos Post on March 10, 2009 2:23 AM | Permalink | Reply to this

### Re: Banning Open Access II

He is not in the position to decide on this. Let the scientists, researchers, teachers and science enthusiasts of the world (or US for that matter) to decide on this.

For me, I believe this move (banning of open access) will just hinder the growth of science in information age tremendously.

Posted by: death327 on March 10, 2009 11:53 PM | Permalink | Reply to this

### Re: Banning Open Access II

Is it me, or are the anti-open-access people trying to argue that open access and peer review are mutually exclusive?

I think we need to stress that being pro open access does NOT mean being anti peer review. The two are completely independent. Yes, peer review is important for maintaining scientific standards. Yes, open access is important for providing worldwide accessibility to scientific research. And yes, we should have BOTH.

Posted by: Eugenia Cheng on March 11, 2009 9:30 PM | Permalink | Reply to this

### Re: Banning Open Access II

Eugenia writes:

Is it me, or are the anti-open-access people trying to argue that open access and peer review are mutually exclusive?

Yes, that’s their game. If you read Peter Suber’s blog for a while, you’ll see that’s they’re consistent strategy, and the people who care already know it. It’s the other folks, like legislators, who need to be informed.

Posted by: John Baez on March 27, 2009 6:37 AM | Permalink | Reply to this

### Evolutionary Game-Theoretic Approach; Re: Banning Open Access II

Katharina Habermann, Lutz Habermann, An Evolutionary Game-Theoretic Approach to Open Access, Mar 26, 2009.

The paper presents an evolutionary game-theoretic approach to open access publishing as an asymmetric game between scientists and publishers. We show how the ordinary differential equations of the model presented can be written as a system of Hamiltonian partial differential equations. The understanding of the setting as a Hamiltonian system implies some properties reflecting the qualitative behavior of the system.

Posted by: Jonathan Vos Post on March 27, 2009 4:42 AM | Permalink | Reply to this

### Re: Evolutionary Game-Theoretic Approach; Re: Banning Open Access II

The Habermann^2 paper begins:

The topic of open access publishing has been extensively and controversially discussed.

For general information see, for instance, [11, 12, 13]. There are many models of open access named after different colors such as golden or green roads to open access [2, 10], but we do not want to go into more details, here.

Concerning scientific publishing particularly in mathematics, we refer to [1, 7] and [9] as well as to the references therein.

In [4] the authors illustrate a game-theoretic approach to open access publishing in order to understand different publication patterns within different scientific disciplines. The underlying observation is that there are communities where open access publishing is widely adopted, whereas other scientific communities are far away from practicing any open access publishing.

First, different classical game settings are discussed namely a zero sum game, a game similar to the Prisoners’ Dilemma (up to sign), and a stag hunt game version, all describing a Nash equilibrium dilemma of the non-open access communities. Second, these classical settings are transferred into their quantum game extensions…

Posted by: Jonathan Vos Post on March 27, 2009 5:58 PM | Permalink | Reply to this