Monday, November 12, 2018

Plan S USA?

This article is adapted from my newsletter:

November 8, 2018

Plan S USA?

By David Wojick, Ph.D.
Synopsis: If the U.S. joins the Plan S Coalition it will change the game, maybe even win it. We begin to explore the legal and political issues.

We have said from the beginning that Plan S's biggest problem is the Coalition is far too small to be effective in boycotting the myriad subscription journals. As we reported earlier, even Smits (the "Plan S bulldog") admits this. He came to the U.S. specifically to lobby OSTP to make Plan S part of the Public Access Program. It is therefore worth exploring the complex issues involved.

The U.S. joining the Plan S Coalition would be a momentous decision. While this seems quite unlikely, it should not be ignored. Politics is full of surprises. The Trump administration seems to revel in bold moves and the Democrats now have the House to play with.

OSTP is conducting a review of the Public Access Program. But to begin with, I am not sure that the funding agencies have the legal authority to impose the Plan S restrictions on researchers. The present program is based on the (claimed) agency's federal use license to the accepted manuscript, because the government paid for part of the work. This is a very far cry from telling people which journals they cannot publish in. Federal use is not federal control. Adopting Plan S would be a huge legal step.

Congress could make such a rule but it well might wind up in the Supreme Court. As a precedent, "food stamps" apparently cannot be used to buy hot foods, alcohol, cigarettes, pet food, paper products, medicine, or household supplies. But I know of no precedent for restricting publication. That applying for a grant is voluntary is probably irrelevant, as grant programs fall under the same rules as regulatory programs. (I helped write some of these rules.)

It is a question of what the federal government is allowed to do. That Plan S is about restricting freedom of expression is very important.

I cannot see an agency passing such a restrictive rule without explicit legal authority, but things have become pretty wild in the last decade or so, when it comes to the Executive Branch making its own laws. Anything is possible, but it would probably take a Democrat president.

Thus the legal issues are pretty deep. Next come the political issues.

Until now there has been very little political appetite for something like Plan S here. The green Public Access Program is up and running. Congress won't even shorten the embargo period to 6 months, despite repeated attempts; much less boycott the subscription journal industry. But now we have a new Congress, led by Democrats. Most importantly, Plan S is a new proposal, albeit a radical one.

I suppose an agency might try to just sneak it in. That would be interesting but I cannot imagine which agency it would be. NIH is probably the only agency with enough money to be seriously interested in OA and they are very green with PMC, which has captured a bunch of other agencies under Public Access.

However, PMC already has a European arm so strong ties there. Moreover, the Welcome Trust, which just joined the Coalition, has actually made PMC a potential instrument of Plan S. Welcome has specified that articles deposited in PMC with the proper terms and conditions are compliant with its new OA mandate. It remains to be seen whether the Plan S Implementation Plan does this, but it looks like PMC is actively involved. I am sure they discussed this with Welcome, maybe even sold it to them.

Gates also joining the Coalition is something of a wild card, because it gives them a significant U.S. member. Plan S is no longer just a European initiative and this means a great deal politically in the U.S., where Gates carries weight.

In general, Plan S looks very much like the British approach writ larger and tougher. The U.S. has already rejected that approach, for now anyway, but that could change.

Interesting times indeed!

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