Euro funders float radical rules

The following is adapted from the Sept 14 issue of my subscription newsletter: "Inside Public Access"

http://insidepublicaccess.com/

Euro funders float radical rules

Synopsis: Many European national funders of research are proposing to prohibit their funded researchers from publishing their results in subscription based journals. This is certainly a radical proposal, slated to go into effect very quickly.

Just when public access seemed to have stabilized the Europeans have dropped a bomb. It is called Plan S, a collaborative policy to be adopted by the funding agencies of almost a dozen countries. The countries range from Sweden to Slovenia, including France and the UK. At this point Germany and the EU are not in it, but that could change. Many prominent research funders are in Plan S, especially the British Councils.

There is some complexity and the exact rules have yet to be spelled out, but the basic idea is pretty simple. All articles flowing from agency funding must be published in fully open journals. All subscription journals are excluded, including open publishing in a hybrid.

These as yet unpublished rules are scheduled to go into effect in 2020, which is just over a year from now. As rule makings go this one is very rapid. There appears to have been no public consultation.

This prohibition is quite radical, excluding an estimated 85% of all major journals. This estimate may be high because it probably does not include most new wave, low Author Processing Charge (APC) journals, which may well benefit from Plan S. But basically publishing funded research results in most major journals is prohibited. This is truly radical.

Plan S is essentially a government mandated boycott of subscription journals. It is hard to imagine the research community being happy with these sweeping prohibitions, given that publishing in important subscription journals is a major measure of their accomplishments. Senior researchers have long standing relations with these journals, including being reviewers. Some are also on the editorial boards of subscription journals.

How this will play out remains to be seen. Does a journal want to use people who are prohibited from publishing in it? Are the Plan S researchers being forcibly removed from the mainstream communication world? Time will tell.

The idea seems to be that this boycott will force publishers to flip their journals to APC OA. Many of the news articles on Plan S say as much. However, at its present size, the Plan S movement may be too small to have this effect. Preliminary analysis suggests that funding from the Plan S agencies generates about 70,000 articles a year, half of which are British. This is a very small fraction of the 3 million or so articles published annually.

If most journals have rejection rates of 50% or more, with the majors being over 80%, then the absence of these Plan S articles will hardly be felt. In this case the most likely outcome is that the publishers will simply launch some parallel APC journals to take the  new Plan S money. Subscriptions are unlikely to go down, because the rest of the world's researchers are still sending in their articles.

That the Plan S researchers should be penalized while the subscription publishers benefit is certainly an unintended consequence, but it may well be the most likely at this point. However, if the EU and Germany join Plan S then this equation could change. If the US or China were to join as well, then Plan S might well work.

Regarding compliance, I have a hard time imagining the research community accepting this mandate. The first published response is a dense 14 page essay, titled "A Response to Plan-S from Academic Researchers: Unethical, Too Risky!" which hints at the depth of the issues. Telling scholars that they cannot publish in 85% of the existing journals, including most of the top ones, and those they already publish in, is a very big ask.

The compliance issue probably will not really arise until several years after the mandate goes into effect, but enforcement will be difficult and expensive. Noncompliance means daring to publish an article that flows from funding in a forbidden journal. It will not be easy for a Plan S funder to discover that this has happened. And punishing people for publishing great work in a leading journal must seem strange.

If there is too much resistance the obvious compromise is to allow publishing in hybrid journals. In fact it is hard to see why this is prohibited. The only reason I have seen is that hybrid OA is growing too slowly, but clearly including them in Plan S would speed their growth.

Plan S may work, or do nothing, or fail deeply. Much is to come!

Fund flipping threatens publishers

The following is adapted from the April 13 issue of my newsletter: "Inside Public Access"

http://insidepublicaccess.com/

By David Wojick, Ph.D.

(davidwojick@insidepublicaccess.com)


Synopsis: A new movement has emerged in the OA community which has the potential to seriously threaten subscription publishing and therefore publishers. Institutions flip their funds from subscriptions to OA.


This movement seems to have no name as such but it flows from an international effort that is called simply OA2020. I call it "fund flipping" in analogy to journal flipping. In fact journal flipping to OA is an aspect of fund flipping.

The basic idea is very simple, as all potentially viable social movements are. In this case it is also breathtaking. Universities and other journal subscribers simply stop paying for subscriptions and instead direct these funds into OA. I am not making this up.

In the US this movement is centered in California, where several universities have signed the OA2020 effort's Expression of Interest. The Expression of Interest says this:

• We aim to transform a majority of today’s scholarly journals from subscription to OA publishing in accordance with community-specific publication preferences. At the same time, we continue to support new and improved forms of OA publishing.
• We will pursue this transformation process by converting resources currently spent on journal subscriptions into funds to support sustainable OA business models. Accordingly, we intend to re-organize the underlying cash flows, to establish transparency with regard to costs and potential savings, and to adopt mechanisms to avoid undue publication barriers.
• We invite all parties involved in scholarly publishing, in particular universities, research institutions, funders, libraries, and publishers to collaborate on a swift and efficient transition for the benefit of scholarship and society at large.

The fund flipping movement is explained in some detail in this recent article:

"What’s behind OA2020? Accelerating the transition to open access with introspection and repurposing funds" by Rachael Samberg et al, C&RL News.

At this stage it is all just preliminary talk, or "introspection," but there is a worst case scenario here that could devastate publishers. If even a significant fraction of their subscribers suddenly stopped paying, many would likely go under. This includes both society and commercial publishers. This is what is meant by "repurposing funds."

Of course there are less draconian scenarios. For example if this movement actually became a serious threat, then the threatened publishers could choose to flip their journals to OA. They might even cut deals to do this, at least the big ones could.

At this point it looks like every university or other major subscriber is supposed to independently "introspect" about how they would like to repurpose their subscription funding. The University of California schools are apparently already doing this. They will be worth watching.

The biggest problem seems to be that there is no formal organization here. Thus there is no one to coordinate these myriad introspections, or for the publishers to deal with.

It seems very unlikely that this sort of uncoordinated grassroots effort could actually succeed. For example, how many university faculties will go along with ending most of their library's subscriptions in the name of OA? This looks like one of those schemes where everyone has to act before it makes sense for anyone to act.

But if it did succeed the result could be pure chaos, up to and including the collapse of the journal system. Uncontrolled revolutions have a way of getting out of hand. There is simply no reason why the independent OA funding actions of myriad institutions should add up to a coherent system of journals. But then some OA advocates claim that a coherent system of journals is unnecessary.

It is far too soon for doomsday predictions, but all major publishers should be aware that this fund flipping movement is growing in Europe and California.

The OA2020 Executive Summary here: https://oa2020.org/wp-content/uploads/pdfs/Open-Access-2020-Executive-Summary.pdf

__________________________________________________________________

Inside Public Access is published bi-weekly. For subscription information:  http://insidepublicaccess.com/. 

We also do confidential research and consulting. 

Public Access limited copyright?

The following is adapted from the March 15 issue of my newsletter: "Inside Public Access"

http://insidepublicaccess.com/

 By David Wojick, Ph.D.

(davidwojick@insidepublicaccess.com)

Synopsis: OA guru John Willinsky proposes that we change the copyright law to embrace public access. It is a big step but it may make sense.

 Canadian scholar and OA guru John Willinsky (now at Stanford) has written a thought provoking book and blog article. The basic idea is amazingly simple: If we are going to make research articles publicly available then we should change the copyright law to do just that.

Here is how Willinsky puts it (speaking just of Canada):

"Canada is recognizing that people everywhere have a right to this body of knowledge that it differs significantly from their right to other intellectual property (which begins well after the author’s lifetime)."

What is true for Canada is true for America too. In fact the Canadian government has a public access program that is similar to the US program.

The point is that copyright law gives authors certain rights for a certain time, that is very long (say 100 years), and the idea here is to dramatically shorten that time for a specific set of articles, namely research articles in journals.

As Willinsky points out, we are already making a lot of these articles OA (such as under the US Public Access Program) by funder mandate. Codifying this existing practice, without the funder limitation, would be easy as far as legislative drafting is concerned.

Getting it passed is another matter, of course, but I can see it having bipartisan support. The Democrats would like the health care argument for OA and the Republicans would like the innovation and economic growth argument.

The key point is that the researcher authors are not writing to make money. One could even argue that a lifetime+ copyright was misapplied to them in the first place. We need the present limited embargo period of 12 months to protect the publishing system, but that is all.

This idea fits the fundamentals elegantly. That makes it an attractive policy.

In fact Congress has already taken a step in this direction. Public Access originated in the Executive Branch, but Congress has now legislated it for the Departments of HHS (think NIH), Education and Labor.

One possible objection is that the 12 month embargo period is too short for some disciplines. However, the publishers have had five years to raise this issue formally with the US Public Access agencies and to my knowledge none has done so.

On the other hand, some disciplines are only lightly funded by the Public Access agencies. In that sense their case has yet to arise and they can make it in the legislative process. I imagine that if Congress were to move in the direction of public access copyright there would be a lot of discussion.

Willinsky specifically mentions a Canadian government review of copyright law that is presently getting underway. His book may even be timed for it. The title of his blog article is Let Canada Be First to Turn an Open Access Research Policy Into a Legal Right to Know so this clearly is a policy proposal.

How this Parliamentary review proceeds with regard to Willinsky's radical public access proposal might be worth watching. In any case the US Congress should consider it.

Note that Richard Poynder has a lengthy discussion of, and interview with, Willinsky here:

https://poynder.blogspot.co.uk/2018/03/the-intellectual-properties-of-learning.html

Should Public Access go global?

The following is adapted from the January 19, 2018 issue of my newsletter: Inside Public Access.  http://insidepublicaccess.com/

Synopsis: In the long run Public Access may be the most viable form of government OA and the best way for OA to go for now.

Building on last week's discussion, it has always seemed to me that the US Public Access model might be one for other countries and regions to follow. There does not seem to be much consideration of this, but that may simply be because the OA movement is still pretty radical. In the long run PA may be the most viable form of government OA.

This issue actually arose five years ago, when Britain went one way and the US went the other. Britain opted for mandatory gold OA while OSTP went for embargoed green. I was puzzled then, and remain puzzled, why this fundamental policy choice has not been widely debated.

As I suggested last week, this absence of discussion may be because the OA movement simply does not like PA. One big wing of that movement wants to end commercial publishing, so PA does nothing for them. A related but less radical OA goal is to dramatically reduce subscription rates, which PA also does not do.

For that matter PA does little to help university librarians, other than make content OA. The problem here seems to be that basic OA does not seem to be the goal of the OA movement.

This may be a case of the perfect being the enemy of the good. A lot of what the OA movement is calling for strikes me as Utopian, especially the elimination of the journal publishing industry. As a strategic planner, I have often found that while Utopians are great at motivating change, they are less so when it comes to picking next steps. This is because their gaze is on a distant horizon, while next steps are all about the here and now.

In any case the choice still lies before the world. As a strategist I really like Public Access. It is simple, efficient and it does the job of making subscription content OA.

There are far fewer countries than there are universities. If a dozen or so major research funding countries were to adopt Public Access then a great deal, probably most, of research publication would become OA. I am pretty sure that most basic research is at least partially government funded.

Nor is there any reason why private funders, such as foundations, could not opt into government PA programs via their own mandates. Of course the government PA programs would need to be open to this, which is not presently the case with the US program. This may be an innovation waiting to happen.

PubMed Central has a nascent precedent as far as going global is concerned. They have both Canada PMC and PMC Europe. But to my knowledge neither the Canadian Government nor the EU has considered making these repositories mandatory.

The PAGES model certainly has international connections, via WorldWideScience.org and other global OSTI activities.  The other PAGES users -- NSF and DOD -- no doubt also have international contacts, as do the stand alone agency PA groups like USDA.

But I expect that the State Department would have to get involved, in order to sell the US Public Access model to the rest of the world. The OA movement is not likely to do it at this time.

Public Access going global would go a long way toward meeting the basic OA challenge.

Looking ahead at Open Access and US Public Access

The following is adapted from my newsletter -- Inside Public Access, January 11, 2018

Synopsis: The New Year is a time for reflection and Richard Poynder has provided a good hook for reflecting on the US Public Access Program. He has posted a number of structured interviews with various open access thought leaders, basically asking where do we go from here? I have added some reflections on the US Public Access Program.

One of the striking features of the Poynder interview responses (see links below) is that there is no mention of Public Access Program, despite it being by far the biggest mandatory repository system in the world. It covers a significant fraction of all physical, medical and computer science publications, perhaps 20% or more. In some research areas US federal funding is dominant.

This lack of acknowledgement, or interest, is despite the fact that Richard specifically asks about the roles of (1) funders and (2) government. Public Access is all about government funders who build and operate extensive journal article collection systems and infrastructure to provide open access. What is not to like?

So having studied both public and open access for over five years now, I thought to reflect on this striking situation.

There seem to me to be at least two different things going on. First, the US Public Access Program is distributed, unnamed and not publicized. Second it is ideologically not popular with the OA movement, for various reasons.

To begin with, I have found in numerous discussions with OA people that there is a general lack of understanding of the Public Access Program.

It does not help that this large federal program has no actual name. I call it the "US Public Access Program" but that is just me. As a result, there is no simple way to reference or even to talk about it. Attempts to do so usually involve references to the 2013 OSTP memo, which is both awkward and sounds like something that happened a long time ago.

The fact that the Program is distributed among numerous funding agencies also makes it hard to see. Individual Public Access websites and guidance are all agency focused. There is almost no sense of this being an important government wide program.

I also see the agencies doing very little to publicize their parts of the Program. This may well be because these are not separately funded. Publicity efforts are often part of the funding cycle. The agencies are more interested in publicizing their research program successes and opportunities. Plus Public Access operates on a shoestring internal budget.

Lack of interest by the OA movement also has several sources. When NIH launched Public Access over ten years ago, that was big news. Extending the Program to the rest of the Federal Government is seen by many OA advocates as something of a lateral move, not as progress.

In particular, the 12 month embargo is now often seen as an obstacle, not an accomplishment. In this regard it is puzzling that no one that I know of has petitioned an agency for a shorter embargo period. One would think that such an action, which would get lots of publicity, is a natural accompaniment to the FASTR bill's 6 month embargo mandate.

Here I think that the deeper issue is that the open access movement is largely focused on the university community, not the funders or governments. Many, perhaps most, of the activists are university librarians.

So for example the focus is on building university repositories. This stands out clearly in the Poynder interviews. That the Public Access repositories probably dwarf the US university repositories is irrelevant. It is the mechanism, not the outcome, that is the focus of the movement.

More broadly there is the ideological idea of the university community owning open access. This is a fundamental reform, to which funder or government action is something of an outsider. That open access is up to the researchers and their institutions stands out in the Poynder responses, especially those from the university sector.

Despite the apparent indifference of the open access movement, the US Public Access Program does seem to be secure for now. The biggest strategic need is inter-agency integration. Now that the agency repositories are mostly up and running, there is a tremendous opportunity to provide government wide visibility. This could be very useful, both to the agencies and to the researchers.

In fact one can argue that the universities are far too independent, numerous and distributed to undertake strategic initiatives. This is actually one of the big reasons why there are governments. If so then while the Public Access Program may not be highly regarded by the open access movement, it may well be the best way forward for open access.

Here are the Richard Poynder interviews:

Poynder says this:

I have posted a number of responses to my question asking people what they think the stakeholders of scholarly communication should be doing now to fully realize the vision outlined at the 2002 meeting that led to the Budapest Open Access Initiative.

Below are the links to those responses:

 Danny Kingsley: Open Access: What should the priorities be today? https://poynder.blogspot.co.uk/2017/12/open-access-what-should-priorities-be.html

Lisa Janicke Hinchliffe: Achieving the BOAI Vision: Possible Actions for Realization https://poynder.blogspot.co.uk/2017/12/achieving-boai-vision-possible-actions.html

Richard Fisher: Open Access and its Discontents: A British View from Outside the Sciences https://poynder.blogspot.co.uk/2017/12/open-access-and-its-discontents-british.html

Alison Mudditt: Realising the BOAI vision: The view from PLOS https://poynder.blogspot.co.uk/2017/12/realising-boai-vision-view-from-plos.html

Dominique Babini: Realising the BOAI vision: A view from the global South https://poynder.blogspot.co.uk/2017/12/realising-boai-vision-view-from-global.html

Peter Suber: Realising the BOAI vision: Peter Suber's Advice https://poynder.blogspot.co.uk/2017/12/realising-boai-vision-peter-suber.html

OMICS ruling may govern all journal publishing

In last week's IPA I began to discuss the possibility that the OMICS ruling in Federal Court might apply to all journals. Below are some relevant excerpts for possible discussion.

I do not know much about journal publishing but I know a lot about federal regulation, since it has been my field for over 40 years. This may be the beginning of a complex situation for the community. It certainly bears watching.

David
http://www.insidepublicaccess.com/

Inside Public Access
December 2, 2017

OMICS ruling may govern all journal publishing

By David Wojick, Ph.D.
(davidwojick@insidepublicaccess.com)

Synopsis: The recent Federal Court Order in the OMICS case targets new wave journals, but it probably applies to all journals (and conferences) and the compliance issues are far from simple.


The US Government has taken another step toward regulating scholarly journals. We recently had NIH's pointed recommendations regarding where its grantees should not publish. Now the Nevada District Court has issued an injunction against OMICS that lays out numerous rules that journals must follow.

The OMICS case was brought by the Federal Trade Commission and they view this injunction as a precedent for all journals. A Retraction Watch article cites the FTC attorney saying "This is certainly our message to the academic world that, we are monitoring and on the lookout for predatory publishers." Anyone who thinks this is just about OMICS does not grasp the scope of the situation.

That the FTC actually uses the term "predatory publishers" is unfortunate, but indicative of US policy. What role the federal Public Access Program will play in all of this remains to be seen. They clearly have the lead at NIH, because they are the POC for the directive.

The FTC may well now issue its own rules, especially if they win the case, citing the Court order as authority. Even without the FTC, this Order establishes federal case law to some degree. The three branches of government each make rules. Congress passes laws, the Agencies promulgate regulations and the Courts make case law.

Mind you this is just a preliminary injunction, so the precedent may be weak. But the discussion section of the Order sounds like the Court is likely to rule against OMICS. Note too that the discussion section is itself an important part of the rule making. It needs to be read with care.

The journal industry should carefully consider the relatively detailed rules laid out in the Order. These rules primarily apply to advertising, especially (1) email calls for papers and (2) what is on the journal website. But the business practices are also deeply affected, because these requirements go well beyond just what is said, to what is actually done.

As with many disclosure regulations, you have to say what you do and do what you say. Plus there are rules about what you can and cannot say, and what you must say.

For example, the Court is working toward defining the term "peer review" to mean what the rich journals do. This is lengthy review with detailed reviewer comments and author revisions, which is very expensive. The rule seems to be that a journal cannot say that it does peer review unless it meets this standard.

In fact the discussion seems to suggest that multiple rounds of review are required, which many journals probably do not do. This is a regulatory definition issue that will require a lot of articulation to resolve.

The regulation of scholarly journals is something that the entire industry should be concerned about. Thinking that it is just about some minor predatory journal problem would be a great mistake. The entire industry is now in the Federal cross-hairs.

Any journal can be out of compliance. The discussion section of the Order makes it clear that intent to deceive is irrelevant. All that matters is what is actually done.

So, for example, if a prestigious gold OA journal sends out a call for papers that does not properly disclose its APCs then it will probably be out of compliance. This raises the issue of what counts as proper disclosure? It may be a special problem for journals that charge different APCs, for different authors or institutions or for other reasons. There is also the question of the extent to which these rules apply to APCs in hybrid journals? What about fees other than APCs, including those charged by subscription journals?

Some years ago I did a lot of work with new consumer disclosure regulations laid on the banking industry. These issues can get very hairy. Disclosure of journal (and conference) fees could be a complex beast.

Proper disclosure of fees is just one of many complex issue areas raised by this federal Order. All publishers and journals need to be concerned.

There are also a number of rules governing conferences. These apply more to scholarly societies than to commercial publishers. The central rule looks to be that advertised speakers must show up. Of course this is not always possible, so the question is how to handle that possibility? This too could be a hairy compliance issue.

End of excerpts.

Does Trump's Reg Review threaten Public Access?

INSIDE PUBLIC ACCESS

NEWS AND ANALYSIS OF:   PUBLISHERS -- LIBRARIES -- AUTHORS

CHORUS -- SHARE -- CONGRESS -- FEDERAL AGENCIES -- AND MORE!

http://www.insidepublicaccess.com/

August 17, 2017

Does Reg Review threaten Public Access?

By David Wojick, Ph.D.

 Synopsis: The Administration's massive regulatory review efforts might threaten those Public Access repositories that lack a statutory mandate.

Executive Order 13771 -- "Reducing Regulation and Controlling Regulatory Costs" -- was quickly issued in February 2017. Regulatory review is a traditional Presidential gesture, but unlike previous "feel good" efforts, this one has big teeth. In fact it has two provisions that are so strong they might be illegal.

First there is the "2 for 1" rule, which is not about bargain prices. It says that a federal agency cannot issue a new rule unless it has repealed two existing rules. Two repeals for every one new rule. In this case a rule can be either a formal regulation or a guidance document, basically whatever orders people to do stuff. .

Then there is the regulatory budget rule. It has long been the case that every significant regulation comes with a cost estimate. Thus there is also an estimated total cost for all of an agency's existing (significant) regs. The budget rule basically says that new rules cannot increase this total, which is now the agency's regulatory cost budget.

The intended result is that in order for an agency to issue a new rule, which has a given cost, it will have to cut the cost of its existing rules by an equal amount. It can do this either by repealing existing rules or by revising them to reduce their cost.

These two provisions are each far more sweeping than anything done before. Taken together they could change the way regulatory agencies operate, in effect requiring constant prioritization. Not surprisingly, these rules have already been challenged in Court, especially the 2 for 1 rule. Here the primary argument is that the agencies have statutory obligations to issue regulations, which the President cannot block.

Our concern here is not with the litigation, but with what might happen to Public Access if these reg review rules become truly effective. The primary concern is that regulatory agencies need to issue new rules, so they will be looking for rules to cut or gut.

Each Public Access agency has Public Access rules. Some are called plans, others called policies, but all are rules as far as reg reform goes, because all tell researchers that they have to do something. (Note that the original OSTP memo is probably not a rule because it only directs federal agencies to do something.)

It is also the case that many of the Public Access agencies issue a lot of regulations. DOE, USDA, Commerce and EPA are big examples. Others are primarily science agencies like NSF and NASA. But even these agencies have rules that govern funding, including their Public Access rules. "Agency" is defined at the Department level so the giant NIH falls under HHS, which is also a big regulatory agency. Mind you all of this has to get worked out, along with myriad other details.

The Public Access rules do not cost much to comply with, so they are probably not likely targets for regulatory budget cuts. The big threat is the 2 for 1 rule.

Suppose an agency wants to issue an expensive rule. It first finds a big cost saving by repealing an existing rule. But then it needs a second rule to repeal to meet 2 for 1. Even worse, if it meets the budget rule by modifying an existing rule then it still needs to repeal two other rules. The size of these repealable rules does not matter, which probably makes small rules a better target. They are often easier to repeal. The Public Access rules meet this criterion.

In fact the agencies may well try to game the 2 for 1 rule by breaking guidances and regulations down into small pieces, then counting them separately. In the Public Access case this could mean counting the publication and data parts as two different rules. There is some guidance for reg review but the size issue is not addressed. Plus guidances are a lot easier to repeal than formal regulations.

PubMed Central is probably safe because it has a detailed statutory requirement. But most of the other Public Access repositories have little in the way of statutory support.

As far as I know, few 2 for 1 reg repeals have been announced and the relevant internal agency negotiations are still going on, out of sight. In fact one of the arguments against litigation is that nothing has happened yet.

Expect this issue to become very large, very fast, if significant proposed repeals begin to emerge. Most federal rules have strong, vocal supporters. Let's hope Public Access does too. It may need them.

__________________________________________________________________

Inside Public Access is published weekly. For subscription information:  http://insidepublicaccess.com/. 

We also do confidential consulting.