Category: Legislation and Government Regulation

"Open Access Policy: Numbers, Analysis, Effectiveness"

A. Swan et al. have self-archived "Open Access Policy: Numbers, Analysis, Effectiveness".

Here's an excerpt:

The PASTEUR4OA project analyses what makes an Open Access (OA) policy effective. The total number of institutional or funder OA policies worldwide is now 663 (March 2015), over half of them mandatory. ROARMAP, the policy registry, has been rebuilt to record more policy detail and provide more extensive search functionality. Deposit rates were measured for articles in institutions' repositories and compared to the total number of WoS-indexed articles published from those institutions. Average deposit rate was over four times as high for institutions with a mandatory policy. Six positive correlations were found between deposit rates and (1) Must-Deposit; (2) Cannot-Waive-Deposit; (3) Deposit-Linked-to-Research-Evaluation; (4) Cannot-Waive-Rights-Retention; (5) Must-Make-Deposit-OA (after allowable embargo) and (6) Can-Waive-OA. For deposit latency, there is a positive correlation between earlier deposit and (7) Must-Deposit-Immediately as well as with (4) Cannot-Waive-Rights-Retention and with mandate age. There are not yet enough OA policies to test whether still further policy conditions would contribute to mandate effectiveness but the present findings already suggest that it would be useful for current and future OA policies to adopt the seven positive conditions so as to accelerate and maximise the growth of OA.

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"Next Up for Agency Public Access Plans: NOAA"

SPARC has released "Next Up for Agency Public Access Plans: NOAA" by Heather Joseph.

Here's an excerpt:

The National Oceanic and Atmospheric Administration (NOAA) has released its plan to create policies ensuring public access to articles and data resulting from its funded research, as required by the February 2013 White House directive. . . .

The NOAA plan calls for all agency-funded intramural and extramural researchers to deposit final, accepted manuscripts into the agency's repository upon acceptance in a peer-reviewed journal. Unlike many of the other agencies that have released plans to date, NOAA will also require its investigators to submit technical reports, data reports, and technical memoranda into the repository as well—significantly increasing the scope of the materials covered by the agency's policy.

NOAA will use the OSTP-suggested 12-month embargo period as its baseline. Like other agencies, it will provide stakeholders with a mechanism for petitioning the agency to change the embargo period. The plan indicates that requests must include evidence that outweighs the public benefit of having the embargo remain at one year. . . .

Currently, funded researchers are required to make data "visible and accessible" within two years. The new plan calls for this time frame to be shortened to just one year. It also indicates that data underlying the conclusions of peer-reviewed articles will most likely be required to be made available at the time of the article's publication, in appropriate repositories (presumably to be designated by NOAA).

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"NIST Releases Public Access Plan: Agency will Partner with NIH to use PMC Platform"

SPARC has released "NIST Releases Public Access Plan: Agency will Partner with NIH to use PMC Platform" by Heather Joseph.

Here's an excerpt:

NIST's plan calls for the agency to partner with the National Institutes of Health (NIH), to use PubMed Central (PMC) as the repository for articles. The plan indicated that NIST selected this option in order to "leverage the well-established search, archival, and dissemination features of PMC."

All NIST-funded researchers will be required to deposit their final peer-reviewed manuscripts into PMC upon acceptance in a peer-reviewed journal and make them available to the public with no longer than a 12-month embargo period. NIST will also accept final published articles where allowed and will follow the NIH's current format requirements. As with the other agencies, NIST will provide stakeholders with a mechanism for petitioning the agency to "shorten or extend the allowable embargo period." NIST envisions that this process would take place through a public petition process run through the Federal Register. . . .

NIST's plan for providing public access to data consists of three components: requiring data management plans (DMPs), creating an Enterprise Data Inventory (EDI), and establishing a Common Access Platform providing a public access infrastructure.

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Department of Defense Releases Draft Plan to Establish Public Access to the Results of Federally Funded Research

The Department of Defense has released a draft Plan to Establish Public Access to the Results of Federally Funded Research .

Here's an excerpt from the SPARC announcement:

It calls for all DoD-funded researchers to deposit final peer-reviewed manuscripts into the Department's "Defense Technical Information Center" (DTIC) repository. All articles will be made available to the public with no longer than a 12 embargo period. . . .

The DoD draft plan doesn't elaborate on reuse rights for articles in the DTIC database, other than to note that articles will be subject to copyright and related license terms. Articles authored by DoD employees, however, will carry a full government use license. . . .

One significant place where the DoD's draft plan differs from others released to date is in the area of compliance. The Department indicates that it plans to develop its own "compliance monitor," that will issue "certification tokens" to authors who submit articles and datasets to the DoD under the new policies. The current document doesn't provide any additional details, but the concept of tokens is an intriguing one.

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"Public Knowledge Applauds FCC for Delivering Strong Open Internet Rules"

Public Knowledge has released "Public Knowledge Applauds FCC for Delivering Strong Open Internet Rules."

Here's an excerpt:

Today, the Federal Communications Commission published its Open Internet Report and Order. The order details strong rules designed to prevent Internet Service Providers from blocking, throttling or using paid prioritization to control how Americans use the internet. . . .

An initial review shows that the order uses Title II to deliver the strong rules the Chairman promised and consumers expect. It includes simple and clear bright-line rules of no blocking, no throttling, and no paid prioritization. It prohibits unreasonable interference with consumer Internet use and strengthens transparency requirements. The Order also shows that the decision is rooted in the opinions, arguments, and legal reasoning of almost 4 million people in the extensive record gathered through this transparent process. . . .

The Order does not create new fees and taxes for consumers. It does not create rate regulation or tariffs. The FCC was careful to forbear from 27 provisions of Title II and over 700 rules and regulations. This effort creates strong protections for consumers without harming the investment that has driven the growth of the Internet into the essential communications tool for the 21st century. It is no wonder that it has such broad support from technology companies big and small, non-tech companies, racial justice and public interest groups, some Internet Service Providers, venture capitalists and investors.

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"FCC Adopts Strong, Sustainable Rules to Protect the Open Internet"

The FCC has released "FCC Adopts Strong, Sustainable Rules to Protect the Open Internet."

Here's an excerpt:

Today, the Commission—once and for all—enacts strong, sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social, and civic benefits of an Open Internet today and into the future. These new rules are guided by three principles: America's broadband networks must be fast, fair and open—principles shared by the overwhelming majority of the nearly 4 million commenters who participated in the FCC's Open Internet proceeding. Absent action by the FCC, Internet openness is at risk, as recognized by the very court that struck down the FCC's 2010 Open Internet rules last year in Verizon v. FCC. . . .

Bright Line Rules: The first three rules ban practices that are known to harm the Open Internet:

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind-in other words, no "fast lanes." This rule also bans ISPs from prioritizing content and services of their affiliates.

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"AHRQ, NASA, USDA Release Plans for Public Access to Funded Research"

ARL has released AHRQ, NASA, USDA Release Plans for Public Access to Funded Research.

Here's an excerpt:

Three US Government agencies-the Agency for Healthcare Research and Quality (AHRQ), the National Aeronautics and Space Administration (NASA), and the US Department of Agriculture (USDA)-recently released their plans for increasing public access to federally funded research in response to the 2013 White House Office of Science & Technology Policy (OSTP) directive. The OSTP memorandum directed federal agencies with R&D budgets of $100 million or more to develop plans to make the published results of federally funded research freely available to the public within one year of publication.

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Archival Electronic Records: President Barack Obama Signs the Presidential and Federal Records Act Amendments of 2014

President Barack Obama has signed H.R. 1233, the Presidential and Federal Records Act Amendments of 2014.

Here's an excerpt from the announcement:

Major updates to the Presidential and Federal Records Acts include:

  • Strengthening the Federal Records Act by expanding the definition of Federal records to clearly include electronic records. This is the first change to the definition of a Federal record since the enactment of the act in 1950.
  • Confirming that Federal electronic records will be transferred to the National Archives in electronic form.
  • Granting the Archivist of the United States final determination as to what constitutes a Federal record.
  • Authorizing the early transfer of permanent electronic Federal and Presidential records to the National Archives, while legal custody remains with the agency or the President.

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President Obama Releases Net Neutrality Statement

President Obama has issued a statement about net neutrality.

Here's an excerpt:

The FCC is an independent agency, and ultimately this decision is theirs alone. I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online. The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe. These bright-line rules include:

  • No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player—not just those commercially affiliated with an ISP—gets a fair shot at your business.
  • No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others—through a process often called "throttling"—based on the type of service or your ISP's preferences.
  • Increased transparency. The connection between consumers and ISPs—the so-called "last mile"—is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.
  • No paid prioritization. Simply put: No service should be stuck in a "slow lane" because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet's growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

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UK Launches New Licensing Program for 91 Million Orphan Works

The UK has launched a new licensing program for orphan works that will cover around 91 million works.

Here's an excerpt from the announcement:

A new licensing scheme launched today (29 October 2014) could give wider access to at least 91 million culturally valuable creative works-including diaries, photographs, oral history recordings and documentary films.

These works are covered by copyright, but rights holders cannot be found by those who need to seek permission to reproduce them. Under the new scheme, a licence can be granted by the Intellectual Property Office so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward.

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International Trade Commission and Digital Data Regultation: "Brief of PK and EFF in ClearCorrect v. ITC"

The EFF has released "Brief of PK and EFF in ClearCorrect v. ITC."

Here's an excerpt from the announcement:

In the sweeping and unprecedented decision below, the International Trade Commission found that its authority to regulate trade extends to pure "electronic transmission of digital data" untied to any physical medium. Generally, by statute, the Commission's jurisdiction is limited to oversight of "importation . . . of articles." However, the Commission expansively construed the term "articles" to potentially include anything "bought and sold in commerce," thereby leading to its conclusion that digital data was an article of importation. This broadly sketched statutory construction fails to indicate clearly any limiting principles on the Commission's power.

Among other things, the Commission's decision leaves open the question of whether all transmissions of telecommunications data are within the scope of its authority.

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"Codifying Collegiality: Recent Developments in Data Sharing Policy in the Life Sciences "

Genevieve Pham-Kanter et al. have published "Codifying Collegiality: Recent Developments in Data Sharing Policy in the Life Sciences " in PLOS ONE.

Over the last decade, there have been significant changes in data sharing policies and in the data sharing environment faced by life science researchers. Using data from a 2013 survey of over 1600 life science researchers, we analyze the effects of sharing policies of funding agencies and journals. We also examine the effects of new sharing infrastructure and tools (i.e., third party repositories and online supplements). We find that recently enacted data sharing policies and new sharing infrastructure and tools have had a sizable effect on encouraging data sharing. In particular, third party repositories and online supplements as well as data sharing requirements of funding agencies, particularly the NIH and the National Human Genome Research Institute, were perceived by scientists to have had a large effect on facilitating data sharing. In addition, we found a high degree of compliance with these new policies, although noncompliance resulted in few formal or informal sanctions. Despite the overall effectiveness of data sharing policies, some significant gaps remain: about one third of grant reviewers placed no weight on data sharing plans in their reviews, and a similar percentage ignored the requirements of material transfer agreements. These patterns suggest that although most of these new policies have been effective, there is still room for policy improvement.

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Legal Analysis: Technology, Equality and Accessibility in College and Higher Education Act (TEACH Act)

The EDUCAUSE Policy Office has released Technology, Equality and Accessibility in College and Higher Education Act (TEACH Act).

Here's an excerpt from the announcement:

This analysis, however, demonstrates that the TEACH Act would actually create de facto enforceable standards for digital instructional materials and related technologies, and that in the process it would severely limit the ability of colleges and universities to effectively use technology to advance learning for all students.

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"Bill Introduced in Congress to Let You Actually Own Things, Even if They Contain Software"

Kit Walsh has published "Bill Introduced in Congress to Let You Actually Own Things, Even if They Contain Software in Deeplinks."

Here's an excerpt:

At last, someone in Congress has noticed how "intellectual property rights" are showing up in unexpected places and undermining our settled rights and expectation about the things we buy. Today, Representative Farenthold announced the introduction of the You Own Devices Act (YODA). If a computer program enables a device to operate, YODA would let you transfer ownership of a copy of that computer program along with the device. The law would override any agreement to the contrary (like the one-sided and abusive End-User License Agreements commonly included with such software). Also, if you have a right to receive security or bug fixes, that right passes to the person who received the device from you.

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"Keeping Up With… Net Neutrality"

ACRL has released "Keeping Up With… Net Neutrality".

Network neutrality, a term coined by Columbia Law School professor Tim Wu in 2003[1], is the idea that an internet service provider (ISP) should treat all the data that travels through its network equally, regardless of the source, destination, or content of that data. In practice, this means that the data packets that make up streaming video, images from a digital archive, massively multiplayer online games, and class material in a course management system are all delivered from server to user indiscriminately, with minor modifications for network optimization. Discriminating against or blocking content from reaching an end user (e.g. slowing down certain websites like Netflix or blocking access to a service like Apple's FaceTime) violates the principle of net neutrality.

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Digital Legal Deposit, An IPA Special Report

The International Publishers Association has released Digital Legal Deposit, An IPA Special Report.

Here's an excerpt from the press release:

A new IPA report reveals how policies and processes are being developed and implemented which allow digital content, whether in the form of e-books, journals, blogs or website content, to be collected and archived. It contains in-depth analysis of schemes in Germany, the Netherlands, the UK, France and Italy, as well as details from Japan, China, Brazil, the United States, Australia and Canada.

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Judiciary Committee Hearing on Moral Rights, Termination Rights, Resale Royalty, and Copyright Term

The U.S. House Judiciary Committee is holding a hearing on moral rights, termination rights, resale royalty, and copyright term.

Here's an excerpt from "Congress Takes On Copyright Term, Moral Rights, and More":

How is this going to work? It's hard to say. Probably not very well. The hearing structure allows a handful of witnesses to give very brief explanations of their views, but the question-and-answer format hasn't always been very productive. In the past, we've seen lawmakers in the committee raise pet issues instead of focusing on the topics on the agenda—take for example last month's hearing on the first sale doctrine, which included numerous questions about the unrelated issue of "piracy."

Moreover, in the absence of real public feedback during these hearings, the committee has sought to represent the public interest by inviting testimony from "both" sides of an imagined dichotomy. Hearings include witnesses from, say, a big company and a small company, a telecom and a publisher, or a copyright licensor and a licensee. This sometimes provides a good impression of balance, but on a panel addressing four separate issues, the odds seem long. It is also often the case that these "sides" don't include anyone who represents the public interest.

But let's not pass judgment before the hearing even takes place. For those who are watching the hearing, here is a primer on the four issues up for discussion:

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Open Access: Markup of Innovation, Research, Science, and Technology Act Reduces Embargo Period

The House Committee on Science, Space, and Technology has marked up the Frontiers in Innovation, Research, Science and Technology Act (FIRST Act), significantly reducing the embargo period for making works open access.

Here's an excerpt from "FIRST Act Amended to Make Open Access Provision Actually Pretty Good":

Calling this [Section 303 in the prior version of the bill] a "public access" section is a charitable reading: it extended embargo periods to up to three years, it allowed for simple linking to articles rather than the creation of an archive, and it delayed implementation unnecessarily long. (We've ranted about this bill time and again.)

But a glimmer of hope appeared at yesterday's markup. Reps. Jim Sensenbrenner and Zoe Lofgren, introduced an amendment that radically changed Section 303. The new amendment [pdf] maps closely onto Sensenbrenner's Public Access to Public Science Act (H.R. 3157). It sets the embargo period at 12 months (like the NIH's current policy), though it allows stakeholders to extend this by 6 months if they can show a "substantial and unique harm." The amendment was also designed to facilitate long-term preservation, broad analysis of works, and closer investigation of broad copyright licenses. The current version is not perfect, but it is much improved—huge kudos to Sensenbrenner and Lofgren for standing up for open access.

Read more about it at "Revised FIRST Bill Would Give Science Agencies 1 Year to Make Papers Free."

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HEFCE and Three Other UK Funding Bodies Enact Open Access Mandate

The Higher Education Funding Council for England and three other UK funding bodies (the Scottish Funding Council, the Higher Education Funding Council for Wales and the Department for Employment and Learning) have enacted an open access mandate.

Here's an excerpt:

5. The core of this policy is as follows: to be eligible for submission to the post-2014 REF, outputs must have been deposited in an institutional or subject repository on acceptance for publication, and made open-access within a specified time period. This requirement applies to journal articles and conference proceedings only; monographs and other long-form publications, research data and creative and practice-based research outputs are out of scope. Only articles and proceedings accepted for publication after 1 April 2016 will need to fulfil these requirements, but we would strongly urge institutions to implement the policy now. The policy gives a further list of cases where outputs will not need to fulfil the requirements.

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"Finch 18 Months On: A Review of Progress"

Michael Jubb has published "Finch 18 Months On: A Review of Progress: Based on a Paper Presented at the UKSG One-Day Conference, 'Open Access Realities', London, November 2013" in Insights: the UKSG Journal.

Here's an excerpt:

When the Finch Report was published in June 2012, it represented for me the culmination of nine months of intensive work as secretary to the Finch Group. But I was not allowed to rest on my laurels. The Group recognized that the task of implementation would be complex, involving work from many different stakeholders, and it pointed to the need for an implementation strategy that would involve all of them. Perhaps it should have been firmer in recommending how such a strategy should be developed and implemented. Nevertheless, the Group decided that it should as its final act meet in a year's time to assess progress. I was slightly apprehensive when I was asked to prepare a report for the Group to consider at that meeting. This paper—based on a presentation made at the UKSG conference in November 2013—considers the findings of that report, which was published the following week.

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Open Access: SPARC Opposes Frontiers in Innovation, Research, Science and Technology Act

SPARC has released a statement opposing the Frontiers in Innovation, Research, Science and Technology Act.

Here's an excerpt:

Specifically, Section 303 would:

  • Slow the pace of scientific discovery by restricting public access to articles reporting on federally funded research for up to three years after initial publication. This stands in stark contrast to the policies in use around the world, which call for maximum embargo periods of no more than six to 12 months.
  • Fail to support provisions that allow for shorter embargo periods to publicly funded research results. This provision ignores the potential harm to stakeholders that can accrue through unnecessarily long delays.
  • Fail to ensure that federal agencies have full text copies of their funded research articles to archive and provide to the public for full use, and for long-term archiving. By condoning a link to an article on a publisher's website as an acceptable compliance mechanism, this provision puts the long term accessibility and utility of federally funded research articles at serious risk.
  • Stifle researchers' ability to share their own research and to access the works of others, slowing progress towards scientific discoveries, medical breakthroughs, treatments, and cures.
  • Make it harder for U.S. companies — especially small businesses and start-ups — to access cutting-edge research, thereby slowing their ability to innovate, create new products and services, and generate new jobs.
  • Waste further time and taxpayer dollars by calling for a needless, additional 18-month delay while agencies "develop plans for" policies. This is a duplication of federal agency work that was required by the White House Directive and has, in large part, already been completed.
  • Impose unnecessary costs on federal agency public access programs by conflating access and preservation policies as applied to articles and data. The legislation does not make clear enough what data must be made accessible, nor adequately articulate the location of where such data would reside, or its terms of use.

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Copyright Office Seeks Comments on Orphan Works and Mass Digitization

The US Copyright Office is seeking comments on orphan works and mass digitization and it will hold public roundtable discussions on these topics.

Here's an excerpt from the announcement:

The United States Copyright Office will host public roundtable discussions on potential legislative solutions for orphan works and mass digitization under U.S. copyright law on March 10-11, 2014, in Washington, D.C. Requests to participate should be submitted by February 24, 2014. For a participation request form, go to http://www.copyright.gov/orphan/participation-request-form.html.

The Office is also seeking public comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. A comment form will be posted on the Copyright Office website at http://www.copyright.gov/orphan/ no later than March 12, 2014. Comments are due by April 14, 2014, and will be posted on the Copyright Office website.

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Net Neutrality: FCC Chairman Tom Wheeler Issues Statement on FCC’s Open Internet Rules

FCC Chairman Tom Wheeler has issued a statement on the FCC's open internet rules.

Here's an excerpt from Public Knowledge's Sherwin Siy's analysis:

In short, the FCC is keeping all of its possible tools in play. From a legal standpoint, the obvious answer would be to follow the roadmap laid out by the D.C. Circuit's opinion and reclassify broadband as a telecommunications service. That would give the FCC all the authority it needs to preserve net neutrality. But the D.C. Circuit also acknowledged that section 706 gives the FCC broad power to do lots of other things, so long as they will encourage the deployment of broadband. . . .

Speaking of what you can do with section 706, the D.C. Circuit's opinion makes it pretty clear that, while you might not be able to do something that looks too much like traditional common carrier regulation with it, there's a heck of a lot you can do with it. For instance, Wheeler notes, the FCC would seem to have the power overturn state laws that ban communities from setting up their own broadband networks—laws passed with the lobbying muscle of ISPs that don't want the competition. The outer bounds of section 706 are now open for discussion—and they may provide a scope of regulatory power as broad as Title II might have (in some ways, potentially broader). That's another reason to have proceedings on section—ensuring that its authority is used to encourage deployment and competition, and not stray into more troubling areas like censorship or copyright filtering. This, too, should be a clue to the path ahead—one where Title II isn't a political polarizer, but instead a simple, direct application of the FCC's job to protect an open internet.

Read more about it at "FCC Thinks It Can Overturn State Laws That Restrict Public Broadband."

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"The Open Internet Preservation Act"

Several Democratic Senators have introduced "The Open Internet Preservation Act" in the House.

Here's an excerpt from the announcement:

Today, Senators Edward J. Markey (D-Mass.), Richard Blumenthal (D-Ct.), Al Franken (D-Minn.), Tom Udall (D-N.M.), Ron Wyden (D-Ore.), and Jeff Merkley (D-Ore.) introduced S. 1981, "The Open Internet Preservation Act", with House Energy and Commerce Committee Ranking Member Henry A. Waxman (D-Calif.) and Communications and Technology Subcommittee Ranking Member Anna Eshoo (D-Calif.) introducing companion legislation H.R. 3982, to protect consumers and innovation online. Last month, the D.C. Circuit struck down the Federal Communications Commission's (FCC) Open Internet rules preventing broadband providers from blocking or discriminating against content online. The bill would restore these rules until the FCC takes new, final action in the Open Internet proceeding.

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Congress Madates Open Access for Labor, Health, and Human Services, Education and Related Agencies

The passage of the Consolidated Appropriations Act of 2014 mandates open access for federal agencies under the Labor, Health, and Human Services, Education and Related Agencies Senate subcommittee with research budgets of $100 million or more.

Here's an excerpt from the bill:

SEC. 527. Each Federal agency, or in the case of an agency with multiple bureaus, each bureau (or operating division) funded under this Act that has research and development expenditures in excess of $100,000,000 per year shall develop a Federal research public access policy that provides for—

  • the submission to the agency, agency bureau, or designated entity acting on behalf of the agency, a machine-readable version of the author's final peer-reviewed manuscripts that have been accepted for publication in peer-reviewed journals describing research supported, in whole or in part, from funding by the Federal Government;
  • free online public access to such final peer-reviewed manuscripts or published versions not later than 12 months after the official date of publication; and
  • compliance with all relevant copyright laws.

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