"A Tale of Two Bills: The Research Works Act and Federal Research Public Access Act"

Peter Suber has published "A Tale of Two Bills: The Research Works Act and Federal Research Public Access Act" in the latest issue of the SPARC Open Access Newsletter.

Here's an excerpt:

(1) The Research Works Act (RWA)

The RWA is now dead, withdrawn by its Congressional sponsors and chief lobbyist-supporter. But here's a biography and obituary. . . .

(2) The Federal Research Public Access Act (FRPAA)

(2.1) FRPAA would strengthen the OA mandate at the NIH, by reducing the maximum embargo to six months, and then extend the strengthened policy to all the major agencies of the federal government. In that sense, it's the opposite of the RWA. . . .

(2.2) FRPAA uses the term "free online public access" without definition. But for convenience I'll say here that FRPAA requires "OA".

It requires agencies to come up with their own OA policies within the general guidelines laid down in the bill. It's not a one-size-fits-all solution and agencies are free to differ on the details. If the bill passes, they'll have one year to develop their policies (Section 4.a).

But agencies must mandate OA to agency-funded research. The must mandate OA "as soon as practicable" after publication (4.b.4), but no later than six months after publication. The guidelines do not stipulate the timing of deposits, only the timing of OA. For researchers employed and not merely funded by the federal government, FRPAA allows no embargo at all (4.c.2).

Like the NIH policy, FRPAA applies to the authors' peer-reviewed manuscripts (4.b.2), not to the published editions of their articles. Like the NIH policy, it allows consenting publishers to replace the peer-reviewed manuscripts with the published editions (4.b.3). It does not apply to classified research or royalty-producing work such as books (4.d.3). It also exempts patentable discoveries, but only "to the extent necessary to protect a…patent" (4.d.3).

Unlike the NIH policy, FRPAA doesn't specify the OA repository in which authors must deposit their manuscripts, the way the NIH specifies PubMed Central. Agencies could host their own repositories or make use of existing repositories, including the institutional repositories of their researchers. FRPAA only requires that the repositories meet certain conditions of OA, interoperability, and long-term preservation (4.b.6).

FRPAA and the NIH policy differ slightly in how they secure permission for the mandated OA. The NIH requires grantees to retain the non-exclusive right to authorize OA through PubMed Central. If a given publisher is not willing to allow OA on the NIH's terms, then grantees must look for another publisher. FRPAA requires agencies to "make effective use of any law or guidance relating to the creation and reservation of a Government license that provides for the reproduction, publication, release, or other uses of a final manuscript for Federal purposes" (4.c.3). The FRPAA approach gives agencies more flexibility. Agencies may use the battle-tested NIH method if they wish. They may use a federal-purpose license such as that codified in 2 CFR 215.36(a) (January 2005) if they wish. Or they may make use of "any [other] law or guidance" that would be "effective" in steering clear of infringement.

FRPAA does not amend copyright or patent law (4.e).

FRPAA applies to all unclassified research funded in whole or part (4.b.1) by agencies whose budgets for extramural research are $100 million/year or more (4.a). This includes the Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Transportation, Environmental Protection Agency, National Aeronautics and Space Administration, and the National Science Foundation.

The House and Senate versions of the bill are identical. FRPAA was introduced twice before (in 2006 and 2009-10), and is essentially identical to both previous versions. . . .

(2.8) Will FRPAA pass?

We don't know, of course. Several factors weigh against it: This is an election year. Congress is as gridlocked and incapacitated as it has ever been, even for legislation with bipartisan support. Many policy issues have a higher priority in Congress than OA.

But several factors boost its chances. This is FRPAA's third time around, and the first two times did a lot of the hard work in educating policy-makers about the issues. The first two times around also gathered some significant endorsements, for example, more than 120 US college and university presidents and provosts, 41 Nobel laureates, major library and public-interest organizations, and at least two non-academic, business-oriented organizations, NetCoalition and the Committee for Economic Development. The White House RFI responses are generally stronger than FRPAA; they're already public and may soon appear in Interagency Working Group reports and White House action.

Finally we can't overlook the RWA shipwreck and the rising tide that beached it. The same forces that brought down RWA are now refocusing on raising up FRPAA. The same forces that protect the NIH policy from repeal now want to see it strengthened and extended to other agencies. The Congressional offices which have begun to understand the issues are heartily tired of publisher misrepresentations.

The RWA, COMPETES Act, FRPAA, and the White House RFI can be put in roughly this order: anti, weak, strong, and stronger. Subtract anti and what do you have? Unambiguous good news. Only time will tell how good it is. And that's where you come in.

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