More Legislative Shenanigans: Research Works Act (H.R. 3699)

In case SOPA, the Stop Online Piracy Act, hasn’t given you enough heartburn, here’s another development on the legislative horizon to be concerned about–H.R. 3699, the Research Works Act. The Association of American Publishers has provided a summary of what they hope the bill will accomplish, which is a frightening read for those of us committed to the principles of Open Access. It appears that H.R. 3699 would seriously threaten public access to federally funded research and deal a critical blow to the Open Access movement, which has been buoyed by exactly the kind of activity H.R. 3699 seeks to curtail in the AAP’s view, namely public access mandates and the development of repositories for publicly funded research.

Reading the text of the bill, the definition of what constitutes “private-sector research work” is particularly troubling:

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.

Looking closely, we see that the bill seeks to define “private-sector research work” by the intent of its author rather than the source of his or her funding or employment. This emphasis on authorial intention rather than affiliation elides the fact that much of the research this bill addresses does not originate in the private sector as we typically understand it–the realm of for-profit entities, businesses, and individuals outside the realm of state control or support. Instead, much of this research springs from the activity of public institutions, government funding, and not-for-profit entities such as private universities.

Secondly, the definition emphasizes the “value-added contribution” of publishers. While publishers do indeed perform valuable tasks in the service of disseminating research, one could argue that they are not necessarily the only (or even the primary) actors in this process. For example, the text of bill cites “peer review” as a contribution that publishers make to research product. However, it is important to note that for most journals publishers only facilitate the peer review process, while the work of peer review is actually performed by scholars who are typically not compensated monetarily for their effort. Yes, publishers do provide unique and valuable services, but their work should be understood in the larger context of scholarly communication.

Given the potentially wide-ranging impact of this bill, there is sure to be much more discussion to come. Stay tuned.

NB: I am indebted to MPublishing’s own Jim Ottaviani for his careful legislative exegesis.