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IP Contributions to Scientific Papers by Publishers: An open letter to Rep Maloney and Issa

8 January 2012 1,436 views 20 Comments

Dear Representatives Maloney and Issa,

I am writing to commend your strong commitment to the recognition of intellectual property contributions to research communication. As we move to a modern knowledge economy, supported by the technical capacity of the internet, it is crucial that we have clarity on the ownership of intellectual property arising from the federal investment in research. For the knowledge economy to work effectively it is crucial that all players receive fair recompense for the contribution of intellectual property that they make and the services that they provide.

As a researcher I like to base my work on solid data, so I thought it might interest you to have some quantitation of the level of contribution of IP that publishers make to the substance of scientific papers. In this, I have focussed on the final submitted version of papers after peer review as this is the version around which the discussion of mandates for deposition in repositories revolve. This also has the advantage of separating the typesetting and copyright in layout, clearly the property of the publishers from the intellectual substance of the research.

Contribution of IP to the final (post peer review) submitted versions of papers

Methodology: I examined the final submitted version (i.e. the version accepted for publication) of the ten most recent research papers on which I was an author along with the referee and editorial comments received from the publisher. For each paper I examined the text of the final submitted version and the diagrams and figures.  As the only IP of significance in this case is copyright the specific contributions that were searched for were text or elements of figures contributed by the publisher that satisfied the requirements for obtaining copyright. Figures that were re-used from other publications (where the copyright had been transferred to the other publisher and permission been obtained to republish) were not included as these were considered “old IP” that did not relate to new IP embodied in the specific paper under consideration. The text and figures were searched for specific creative contributions from the publisher and these were quantified for each paper.

Results: The contribution of IP by publishers to the final submitted versions of these ten papers, after peer review had been completed, was zero. Zip. Nada. Zilch. Not one single word, line, or graphical element was contributed by the publisher or the editor acting as their agent. A small number of single words, or forms of expression, were found that were contributed by external peer reviewers. However as these peer reviewers do not sign over copyright to the publisher and are not paid this contribution cannot be considered work for hire and any copyright resides with the original reviewers.

Limitations: This is a small and arguably biased study based on the publications I have to hand. I recommend that other researchers examine their own oeuvre and publish similar analyses so that effects of discipline, age, and venue of publication can be examined. Following such analysis I ask that researchers provide the data via twitter using the hashtag #publisheripcontrib where I will aggregate it and republish.

Data availability: I regret that the original submissions can not be provided as the copyright in these articles was transferred after acceptance for publication to the publishers. I can not provide the editorial reports as these contain material from the publishers for which I do not have re-distribution rights.

The IP argument is sterile and unproductive. We need to discuss services.

The analysis above at its core shows how unhelpful framing this argument around IP is. The fact that publishers do not contribute IP is really not relevant. Publishers do contribute services, the provision of infrastructure, the management of the peer review process, dissemination and indexing, that are crucial for the current system of research dissemination via peer reviewed papers. Without these services papers would not be published and it is therefore clear that these services have to be paid for. What we should be discussing is how best to pay for those services, how to create a sustainable market place in which they can be offered, and what level of service the federal government expects in exchange for the services it is buying.

There is a problem with this. We currently pay for these services in a convoluted fashion which is the result of historical developments. Rather than pay up front for publication services, we currently give away the intellectual property in our papers in exchange for publication. The U.S. federal and state governments then pay for these publication services indirectly by funding libraries to hire access back to our own work. This model made sense when the papers were physically on paper; distribution, aggregation, and printing were major components of the cost. In that world a demand side business model worked well and was appropriate.

In the current world the costs of dissemination and provision of access are as near to zero as makes no difference. The major costs are in the peer review process and preparing the paper in a version that can be made accessible online. That is, we have moved from a world where the incremental cost of dissemination of each copy was dominant, to a world where the first copy costs are dominant and the incremental costs of dissemination after those first copy costs are negligible. Thus we must be clear that we are paying for the important costs of the services required to generate that first web accessible copy, and not that we are supporting unnecessary incremental costs. A functioning market requires, as discussed above, that we have clarity on what is being paid for.

In a service based model the whole issue of IP simply goes away. It is clear that the service we would wish to pay for is one in which we generate a research communication product which provides appropriate levels of quality assurance and is as widely accessible and available for any form of use as possible. This ensures that the outputs of the most recent research are available to other researchers, to members of the public, to patients, to doctors, to entrepreneurs and technical innovators, and not least to elected representatives to support informed policy making and legislation. In a service based world there is no logic in artificially reducing access because we pay for the service of publication and the full first copy costs are covered by the purchase of that service.

Thus when we abandon the limited and sterile argument about intellectual property and move to a discussion around service provision we can move from an argument where no-one can win to a framework in which all players are suitably recompensed for their efforts and contributions, whether or not those contributions generate IP in the legal sense, and at the same time we can optimise the potential for the public investment in research to be fully exploited.

HR3699 prohibits federal agencies from supporting publishers to move to a transparent service based model

The most effective means of moving to a service based business model would be for U.S. federal agencies as the major funders of global research to work with publishers to assure them that money will be available for the support of publication services for federally funded researchers. This will require some money to be put aside. The UK’s Wellcome Trust estimates that they expect to spend approximately 1.5% of total research funding on publication services. This is a significant sum, but not an overly large proportion of the whole. It should also be remembered that governments, federal and state, are already paying these costs indirectly through overheads charges and direct support to research institutions via educational and regional grants. While there will be additional centralised expenditure over the transitional period in the longer term this is at worst a zero-sum game. Publishers are currently viable, indeed highly profitable. In the first instance service prices can be set so that the same total sum of money flows to them.

The challenge is the transitional period. The best way to manage this would be for federal agencies to be able to guarantee to publishers that their funded researchers would be moving to the new system over a defined time frame. The most straight forward way to do this would be for the agencies to have a published program over a number of years through which the publication of research outputs via the purchase of appropriate services would be made mandatory. This could also provide confidence to the publishers by defining the service level agreements that the federal agencies would require, and guarantee a predictable income stream over the course of the transition.

This would require agencies working with publishers and their research communities to define the timeframes, guarantees, and service level agreements that would be put in place. It would require mandates from the federal agencies as the main guarantor of that process. The Research Works Acts prohibits any such process. In doing so it actively prevents publishers from moving towards business models that are appropriate for today’s world. It will stifle innovation and new entrants to the market by creating uncertainty and continuing the current obfuscation of first copy costs with dissemination costs. In doing so it will damage the very publishers that support it by legislatively sustaining an out of date business model that is no longer fit for purpose.

Like General Motors, or perhaps more analogously, Lehman Brothers, the incumbent publishers are trapped in a business model that can not be sustained in the long term. The problem for publishers is that their business model is predicated on charging for the dissemination and access costs that are disappearing and not explicitly charging for the costs that really matter. Hiding the cost of one thing in a charge for another is never a good long term business strategy. HR3699 will simply prop them up for a little longer, ultimately leading to a bigger crash when it comes. The alternative is a managed transition to a better set of business models which can simultaneously provide a better return on investment for the taxpayer.

We recognise the importance of the services that scholarly publishers provide. We want to pay publishers for the services they provide because we want those services to continue to be available and to improve over time. Help us to help them make that change. Drop the Research Works Act.

Yours sincerely

Cameron Neylon

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  • jennyeva15

     

    Very informative and it helped me in my works also.
    Really thankful to this article, Keep it up………

  • http://brembs.net/ brembs

    Pertinent article on economics journals from 2001:
    http://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.15.4.183
    Would like to see that analysis on STM papers…

  • http://brembs.net/ brembs

    Hmm, just occurred to me: let’s say the publishing industry transitions to a service industry and all else remains equal: who or what is going to prevent them from hiking prices for service just as before for subscriptions? Competition did not do that before, why should it do it then?

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  • http://cameronneylon.net Cameron Neylon

    My sense is that as long as the authors at least _see_ the price then we’ve solved one of the major current problems – that the people actually making the purchase decision (the authors) are completely price insensitive. I’d rather that the money actually go through authors hands, and indeed that we have to make a choice about paying for the paper or buying some reagents. That way we (perhaps, if I’m not too naively optimistic) have a proper functioning market. Not sure whether this will be possible in practice – but my sense is that if people at least _see_ the price tag then that will make a big difference. “Why are we paying £20k for this Nature paper!” I can hear ringing down the hallways…

  • http://brembs.net/ brembs

    Methinks this sounds overly optimistic.

  • http://brembs.net/ brembs
  • http://twitter.com/gcroucher Graham Croucher

    A great, well-thought out article. A pity that the Congresswoman/her office will only read the first line and mistakenly think you are supporting the Act.

  • http://cameronneylon.net Cameron Neylon

    I live in hope that a staffer might read beyond that. The key thing is that the argument makes its way around so that people hear it in the right places. My experience is that persuading the principals in these kinds of cases is usually a waste of time – one can hope but its unusual to be successful. It’s persuading everyone else that matters.
    Cheers

    Cameron

  • http://cameronneylon.net Cameron Neylon

    I take your point. But one of the key reasons that lets the publishers ramp up prices is the lack of direct price sensitivity. Librarians keep trying to buy because they know (or at least fear) that if they cut off access (by choosing not to subscribe) that faculty will go ballistic. But when it is faculty seeing those prices the dynamic will change a lot. If Professor X see’s “Nature £25,000″ and knows that PLoS Biology is only £2500 they are going to be wanting to get their hands on that extra £22k or so.

  • http://brembs.net/ brembs

    That definitely is a possible scenario. However, I wonder if this is sustainable at all: those will be publishing costs and not access. This means only rich people will be able to afford in the GlamMag journals. That’s almost worse than now: not only do you have connections and/or fudge your data to be published in GlamMagz, you also need extra cash: the less a journal publishes, the more they have to charge for publications, even if there were no profits involved.
    I guess another point I’m implicitly trying to make is that you can’t have “all else being equal”. If you want full OA, it’s going to be disruptive and not gently. If indeed all else remains equal, this system you imagine will be worse than what we have now – at least for researchers and science, if not for the public at large.

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  • Ben

    Thanks for writing about this.If anyone is interested in helping us organize the fight to retain public access by joining and sharing our Facebook community: http://www.facebook.com/ResearchWorksAct
    We are students and postdocs in Carolyn Maloney’s district, which encompasses Weill-Cornell, Memorial Sloan-Ketting Cancer Center, Rockefeller University, NYU Medical Center, and Mt. Sinai Medical School. Help us spread the word to pressure her to kill the bill.

  • http://cameronneylon.net Cameron Neylon

    That’s great. Happy to spread the word on this. Direct action with the representative is the best way to get people to understand how misguided this is. And if you can persuade either of them or their staffers to actually _read_ this letter then even better!

  • Ben

    Agreed. I went to Rep. Maloney’s office yesterday and had a conversation with a staffer – it wasn’t quite as thorough as your article, but I think direct interactions are a lot more effective than emails/tweets etc. At Rockefeller there is talk of hosting some sort of symposium/debate on these issues that we could invite her to. That would give us a chance to spell out the case in convincing detail. The only problem with a debate is that it would be difficult to find anyone to debate the other side.

  • http://cameronneylon.net Cameron Neylon

    Surely you could find some local publisher and AAP member prepared to back their organisation to hilt because its fully supporting their agenda?

  • http://cameronneylon.net Cameron Neylon

    Actually slight more seriously. Rockefeller are on the list of AAP members and therefore notionally a supporter of RWA. You could ask them whether they were willing to put someone up as they appear to be supporter. Two possible results. One is that they do, so there’s a win because you get the debate. The second is that they come out and say they don’t support which would be a big win.

  • http://twitter.com/OccupyJClub Occupy Journal Club

    Occupy Journal Club is all up for direct action aimed at publishers backing this bill, but we’re just getting off the ground. We will be having a meeting in NYC soon to get organized. Watch this space: http://www.facebook.com/OccupyJournalClub