Elsevier-funded NY Congresswoman Carolyn Maloney Wants to Deny Americans Access to Taxpayer Funded Research

In 2008, under bipartisan pressure from Congress to ensure that all Americans would be able to access the results of taxpayer-funded biomedical research, the US National Institutes of Health instituted a Public Access Policy:

The NIH Public Access Policy ensures that the public has access to the published results of NIH funded research. It requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funds to the digital archive PubMed Central upon acceptance for publication.  To help advance science and improve human health, the Policy requires that these papers are accessible to the public on PubMed Central no later than 12 months after publication.

The policy has provided access for physicians and their patients, teachers and their students, policymakers and the public to hundreds of thousands of taxpayer-funded studies that would otherwise have been locked behind expensive publisher paywalls, accessible only to a small fraction of researchers at elite and wealthy universities.

The policy has been popular – especially among disease and patient advocacy groups fighting to empower the people they represent to make wise healthcare decision, and teachers educating the next generation of researchers and caregivers.

But the policy has been quite unpopular with a powerful publishing cartels that are hellbent on denying US taxpayers access to and benefits from research they paid to produce. This industry already makes generous profits charging universities and hospitals for access to the biomedical research journals they publish. But unsatisfied with feeding at the public trough only once (the vast majority of the estimated $10 billion dollar revenue of biomedical publishers already comes from public funds), they are seeking to squeeze cancer patients and high school students for an additional $25 every time they want to read about the latest work of America’s scientists.

Unable to convince the NIH to support their schemes, the powerful publishing lobby group – the Association of American Publishers – has sought Congressional relief. In 2009, the AAP induced Michigan Rep John Conyers to introduce the “Fair Copyright in Research Works Act” which would have ended the NIH Public Access Policy before it even got off the ground. Fortunately, that bill never left committee.

But they are back at it. A new AAP backed bill – the “Research Works Act” – was just introduced by Reps Carolyn Maloney (D-NY) and Darrell Issa (R-CA). Its text is simple and odious:

    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.

This bill would not only end the NIH’s Public Access Policy, but it would forbid any effort on the part of any agency to ensure taxpayer access to work funded by the federal government.

Why, you might ask, would Carolyn Maloney, representing a liberal Democratic district in New York City that is home to many research institutions, sponsor such a reactionary piece of legislation that benefits a group of wealthy publishers at the expense of the American public? Hmm. Wouldn’t happen to have anything to do with the fact that she’s the biggest recipient of campaign contributions from the publishing industry, would it?

According to MapLight, which tracks political contributions, Dutch publisher 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.

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.

Representative Maloney:

Twitter: @RepMaloney @CarolynBMaloney

Phone: 202-225-7944

FAX: 202-225-4709

Email: Use this form

 

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UPDATE

Several people have commented that the language of the bill I quoted refers to “private sector work”, thinking that this means it does not refer to work funded by the US Government. This term is defined in the bill as:

The term `private-sector research work’ means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

They are using intentionally misleading language to distinguish works funded by the government but carried out by a non-governmental agency as “private sector research”. Thus, under this bill, works funded by the NIH but carried at a University would be “private sector research”.

This language is in there because the US Copyright Act specifically denies copyright protection to works carried out by federal agencies, and the authors of this bill did not want it to be seen as amending Copyright Act, something that would have ensured its defeat.

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23 Comments

  1. Gary
    Posted January 5, 2012 at 6:48 pm | Permalink

    Wait, doesn’t the bill only seek to control private sector research, not publicly-funded research?

  2. Lil
    Posted January 5, 2012 at 6:49 pm | Permalink

    I think it would be helpful if you could explain what congress defines as “private-sector research work”.

  3. Michael Eisen
    Posted January 5, 2012 at 7:12 pm | Permalink

    The full text of the bill makes it clear that “private-sector research work” means works funded by the Federal government but not carried out by government employees. Thus the bill applies to all Federally funded university research. I’ve clarified this in an update.

  4. DrugMonkey
    Posted January 5, 2012 at 9:34 pm | Permalink

    Congress should be working to shorten the 12mo embargo for PMC release, not trying to roll back this excellent policy.

  5. Posted January 6, 2012 at 11:51 am | Permalink

    I just made a call of Carolyn Maloney’s office, to express my opposition to the bill. We also have a brief blog about this here: http://www.keionline.org/node/1341

  6. Roy Plotnick
    Posted January 6, 2012 at 5:28 pm | Permalink

    One unaddressed issue here is the potential impact on non-commercial publishers, such as the professional societies. Journal publication is a critical activity, and it is funded by payments made by users, including access to back issues. I just stepped down as Treasurer of my society, which is relatively small, and about 20% of our funding comes from online sources. The loss of that income could force these journals to shut down and increase the monopoly of the commercial publishers. I should point out that we publish at close to cost and our members have very limited access to NSF grant funds.

  7. Posted January 6, 2012 at 5:53 pm | Permalink

    Elsevier, along with other commercial and non-profit publishers do indeed support the Research Works Act and commend Congressman Issa and Congresswoman Maloney for co-sponsoring this important legislation. You ask why Congresswoman Maloney co-sponsored this legislation? Simple. New York is one of the country’s leading publishing states with more than 300 publishers that employ more than 12,000 New Yorkers, many who live or work in or around New York City. Elsevier and many other publishers have offices located in Congresswoman Maloney’s district. We support her because she has been a strong supporter of this important industry, our employees and good public policy. And we believe the Research Works Act is good public policy.

    For starters, the Research Works Act would only apply to journal articles where the private sector has provided a value-added contribution in the creation of these information products. The bill specifically excludes research reports and the raw data generated by government-funded research. Authors still retain the ability to share data, reports, and other forms of research findings derived from the taxpayer funded research, including their submitted manuscripts.

    But while the government may fund the research, it does not fund the peer review process, editing, or publication of these private-sector information products. Elsevier and other commercial and non-profit publishers invest hundreds of millions of dollars each year in managing the publication of journal articles. Government mandates that require private-sector information products to be made freely available undermine the industry’s ability to recoup these investments.

    The publishing industry has invested significantly in providing public access to scientific journal articles. Patients can get free access to information on new research through various publisher programs including PatientINFORM. This program is provided in partnership with major heath organizations including the American Cancer Society, American Heart Association, and the American Diabetes Association. In addition, many publishers offer a low-cost (between $1 and $4) access through DeepDyve and other similar view-only services. Free access to journal articles is also provided through research libraries throughout the country. Publishers have also partnered with the United Nations to create Research4Life which provides free access to medical and agricultural institutions and practitioners in the developing countries. Millions of articles are downloaded each year as part of this program.

    We’re very proud of what Elsevier has done throughout the years to expand access in sustainable ways, improve the research experience and enhance knowledge and discovery. And there are millions of researchers and other information professionals who value that contribution as well.

  8. Antonio
    Posted January 6, 2012 at 7:21 pm | Permalink

    IMHO, The government makes a highway (with public money) and then some group of people (the publishers) “adds the value” by painting the highway and planting some trees on both sides. Then “the publishers” reclaims a pay to the people who wants to travel across this highway.

    As i see, there are other many industries where there clear rules to make bussiness with infrastructures build by Federal Governments.
    BTW, a highway without trees, paint and design works well too. ArxiV and other initiatives are very good.

  9. Michael Eisen
    Posted January 6, 2012 at 9:34 pm | Permalink

    @Tom Reller. I appreciate you taking the time to explain Elsevier’s point of view. However, as you likely suspected, I do not agree with you.

    First, your characterization of the bill is simply incorrect. You write:

    Research Works Act would only apply to journal articles where the private sector has provided a value-added contribution in the creation of these information products. The bill specifically excludes research reports and the raw data generated by government-funded research. Authors still retain the ability to share data, reports, and other forms of research findings derived from the taxpayer funded research, including their submitted manuscripts.

    However the language of the bill states that it applies to articles “intended to be published in a scholarly or scientific publication, or any version of such an article. Thus the bill would clearly apply to submitted manuscripts.

    But the more important fallacy in your argument is the statement that:

    But while the government may fund the research, it does not fund the peer review process, editing, or publication of these private-sector information products.

    This is ludicrously incorrect. As many studies have shown, on the order of 85% of the revenue collected by biomedical research journals comes, either directly or indirectly, from federal or state governments. And the lions’ share of the “added value” of peer review and editing is carried out by scientists who volunteer their (largely government funded) time to the journals. Thus, if, as you argue, control of the finished product is to go to the party who invested most heavily in the process – this is clearly the American taxpayers and NOT the journals. And this is not even considering the far more significant contribution of generating the research in the first place.

    Perhaps a metaphor will help explain this issue to people unfamiliar with scientific publishing. Consider the process of bringing a new baby into the world. Few would dispute that obstetricians play a significant role in the healthy delivery of a newborn baby. In exchange for their service they provide, they could demand ownership of the baby, and charge the parents a monthly fee to access their child. After all, the doctor “added value” to the baby by ensuring that the birthing process went well, and they deserve to be compensated for it.

    Of course everybody recognizes this is absurd, because, while the doctor did do something of value, their contributions were trivial in comparison to those of the mother who carried the child for 9 months and did far, far more work during the actual delivery. But it is precisely this logic that leads publishers to assert the right to control permanently and charge for access to the primary record of publicly funded scientific and medical research.

    As you know, I understand that the process of overseeing the peer review and editorial processes costs money, and publishers need to be paid for the service they provide the scientific community and allowed to profit on their investments. That is why I and many others have spent over a decade working (through the Public Library of Science) to demonstrate that scientific publishers can thrive using the open access business model in which they are paid an upfront fee for the services they provide, with the articles being made immediately and permanently freely available to all.

    Indeed there is now little doubt that publishers can thrive using an open access business model that is better for virtually everyone with a stake in promoting and disseminating the results of scientific and medical research. You claim that Representative Maloney proposed this bill because it protects American jobs. But this is true in only the narrowest sense. If she had spent time to research the issue, rather than simply responding to her biggest donors, she would undoubtedly have found that the “subtracted value” that comes from impeding the free flow of scientific and medical knowledge poses a far greater threat to American jobs and competitiveness than does protecting the narrow interests of a dying industry.

  10. David García
    Posted January 7, 2012 at 6:15 am | Permalink

    This discussion reminds me “Academic publishers make Murdoch look like a socialist” http://www.guardian.co.uk/commentisfree/2011/aug/29/academic-publishers-murdoch-socialist (George Mombiot)

    Kind regards,
    David

  11. Posted January 7, 2012 at 6:52 am | Permalink

    This pisses me off, and I voted for fucken Maloney (who is otherwise a pretty good Representative). I just submitted comment on her Web form.

  12. Michael Eisen
    Posted January 7, 2012 at 8:48 am | Permalink

    It is particularly galling that publishers are trying to have Congress overturn an NIH Public Access Policy was already a massive compromise of the public interest to that of the publishers in that it allows for an up to 12 month delay in making articles freely available with the express purpose of allowing publishers a period of exclusivity necessitating continued subscription by research institutions requiring access to the latest research.

  13. Posted January 8, 2012 at 2:41 am | Permalink

    What value is added with “peer review and editing” in the age of blogs and the internet? Why would scientists feel compelled to grant Elsevier or any other publisher the power of determining not only what deserves to be published and where and when, but also how much they can gain monetarily out of it (without even sharing any profit with the original author)?

    Methinks there’s too much importance given to how much a journal is “prestigious”. And this all leaves science open to the risk of being manipulated by unscrupulous editing companies.

  14. accessmonkey
    Posted January 8, 2012 at 5:41 am | Permalink

    The White House is looking for public comments right now on access. It runs through the 12th. It’s not enough to just complain in the blogs about the Issa bill. Let Obama know why access is so important. You can be sure that publishers are going to weigh in… http://www.whitehouse.gov/blog/2011/12/21/extended-deadline-public-access-and-digital-data-rfis

  15. Crusty the Clown
    Posted January 8, 2012 at 8:58 am | Permalink

    Ah, isn’t this the same Elsevier which, in 2002, published a fake “peer-reviewed” Australasian Journal of Bone and Joint Medicine? (see
    http://classic.the-scientist.com/blog/display/55671/
    and
    http://en.wikipedia.org/wiki/Australasian_Journal_of_Bone_%26_Joint_Medicine
    for more info)

    There seem to have been other spurious journals propagated upon an unsuspecting readership as well. For shame. That is hardly the way to advance human knowledge, or to get unbiased information into the hands of front-line practitioners. Publication of those so-called “journals” was a purely meretricious act and well-deserved censure was heaped upon Elsevier at the time of disclosure in 2009. Unfortunately, trust is easily destroyed and it takes years – if not decades – to rebuild it. At this point in time I’m not sure I could place any trust in Elsevier, its publications, or its spokesmen. Sorry, but you brought it upon yourselves.

  16. Posted January 8, 2012 at 11:12 am | Permalink

    Tom Reller commented:

    Free access to journal articles is also provided through research libraries throughout the country.

    That would be big news to research libraries. Those same libraries now pay millions of dollars a year each to Elsevier for the right to offer those articles for ‘free.’

  17. Posted January 8, 2012 at 2:28 pm | Permalink

    Correct Michael, I didn’t expect you would agree, but I do think it’s helpful for your readers to see a different point of view.

    In regard to the RWA applying to manuscripts, you fail to mention the following language in the bill — ‘to which a commercial or non-profit publisher has made or has entered into an arrangement to make a value-added contribution, inducing peer review or editing.” The arrangement hasn’t been made yet when an author submits the manuscript. But to clarify, the vast majority of journals allow authors to share submitted manuscripts, because they haven’t yet added any value to it.

    There are plenty of ways that the public can have free access to the products of government-funded research, such as via the author’s research report, data sets or the submitted preprint. But the government shouldn’t be able to mandate the free distribution of an article after journals have invested in them to add value. Processes required to do so – including review and selection for publication, peer review, publication online and in print, technical enhancement, and archiving – are the product of publishers’ effort and investments and that are not paid for with government funds.

    Thank you for acknowledging that the process of overseeing the peer review and editorial processes costs money, and publishers need to be paid for the service they provide the scientific community and allowed to profit on their investments. But your baby metaphor is misleading, and we’re not inclined to deconstruct it. While analogies are helpful illustrating broadly, they rarely hold up when applied to specific situations, particularly in science. Publishers have used analogies as well, most of which convey the widely accepted practice of government funding all sorts of activities that aren’t free to the public.

    Finally, on the assertion about a dying industry, suffice it to say that our industry is dynamic and thriving: we publish and deliver around 2 billion new research articles globally to researchers per year, driven by 3-4% annual growth in research funding and in the number of researchers. Moreover, we record 93% satisfaction levels among researchers. The last fifteen years have seen unprecedented levels of innovation due to publishers’ massive investments in technology, and we will continue to see more so long as publishers have an incentive to keep investing, and as long as they have freedom to continue deploying a mix of sustainable business models to recoup those investments – including institutional (and possibly national) licensing deals, transactional models, and funder/author pays. The mix of models, however, should evolve in response to stakeholder demands, not government mandates.

    Thank you for the opportunity to elaborate, though at this point I hope we can just agree to disagree. And thank you as well for the new twitter followers @Tomreller where I try to share the best of Elsevier – we actually do a lot more in addition to all our work in publishing journals.

  18. Posted January 8, 2012 at 2:38 pm | Permalink

    The next time I am asked to do a peer review for a non-open access journal, I will send them the following email:

    Dear editor,

    It is with great regret that I must decline your request that I peer review this manuscript. Although the attached manuscript has significant merit and I have no known conflict of interests, I worry that any unpaid peer review done for your journal would result in a substantial loss of your own value-add contribution to the publication of this manuscript.

    Sincerely,

    Eric Widera, MD

  19. Posted January 8, 2012 at 10:29 pm | Permalink

    The MapLight approach is interesting. If you look a little bit further you can see that this has been going on for quite some time. Maloney received nearly 40,000 from Elsevier over the past 5 years see: http://openaccess.nl/index.php?option=com_content&view=article&id=289

  20. Andrew King
    Posted January 9, 2012 at 9:32 am | Permalink

    @Tom Reller, since others are being so respectful and sticking to the issue, let me just say that your manipulation of language in this situation disgusts me. In particular, how can you defend the description of all non-government academic research as “private-sector”? As you can see, this language is very misleading to academics, and I for one as a university-based academic do not by any means consider myself to be in the private sector; I’m sure the vast majority of my colleagues would agree. When you can use language that is clear, why use language that is deceptive? It is no better than a bare-faced lie, in fact it is worse, because in this situation you can and will defend it. I myself would be ashamed to make a living peddling such arguments. Sorry for resorting to a thinly-veiled ad hominem, but I am in the mood to speak my mind.

  21. Mark Funk
    Posted January 9, 2012 at 10:20 am | Permalink

    I am frankly at a loss to explain Elsevier’s and other publishers’ opposition to the NIH Public Access Policy. Can they honestly say that this Policy is costing them money? I’m a medical librarian, who specializes in selecting and acquiring biomedical information resources, such as medical journals. I know that researchers in universities and big pharma require the latest publications RIGHT NOW. They can’t wait around 12 months for it to become free. I know of no librarians who are canceling journals because an unknown percentage of the articles within those journals will be free after 12 months. Our researchers wouldn’t stand for it. Librarians may be canceling journals, but that’s because of budget cuts we are experiencing, not the promise of free, year-old articles.

    If publishers can’t show that the current Public Access Policy is costing them money, it must be the principle that matters to them. From the tenor of Mr. Reller’s posts, it appears that Elsevier, at least, relies heavily on the “government shouldn’t be able to mandate the free distribution of an article after journals have invested in them to add value” argument. And yet they are quite happy to accept research articles that were funded by the government, given to them freely, and which become their intellectual property. I would respect the publishers’ position if they backed up their opposition to government mandates by refusing to accept any article that was funded by the NIH. Then we would know it’s about the principle, not the profit to be made by charging $31.50 for ordinary citizens to read the articles.

  22. Posted January 9, 2012 at 11:19 am | Permalink

    Andrew, then lets yes please continue to keep it respectful. We’re not trying to mislead anyone and there’s no need for disgust or anger. Let me have a little time to figure out exactly what the disconnect is here and get back to you, but I think it’s that when we say private sector, we are only referring to our company’s value adding activities, not the government funded research itself, or the activities of the peer reviewers.

  23. Andrew King
    Posted January 9, 2012 at 11:57 am | Permalink

    Tom, I don’t think we need to pretend that we will see eye to eye, but I will point out one thing you said that is, in effect, patently false.

    > But while the government may fund the research, it does not fund the peer review process, editing, or publication of these private-sector information products.

    I have spent countless hours working as a peer reviewer, and my salary has most often been paid directly from government sources. You may argue that it is volunteer work in the name of academic service, but to believe that unpaid peer review does not take a significant amount of working time away from the research of taxpayer-funded scientists would be completely absurd.

    Now, I don’t believe that peer review should be paid, and I do feel it is a necessary service to the scientific community. I have never advanced to the role of editor and I don’t know how or if they are remunerated, but to pretend as though for-profit academic publishers do not have an army of reviewers effectively being paid by other people (usually taxpayers) is frankly an insult to those who do the service.

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