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
