To the White House Office of Science and Technology Policy
May 4, 2020
I am grateful to the OSTP for considering ways to strengthen federal policy on public or open access (OA) to federally-funded research, and for this opportunity to respond to its February 2020 request for information. I speak as an individual, not for my institution.
As a result of the OSTP memorandum of February 2013, the largest federal research-funding agencies now require OA to research articles rising from their grants. But in every case they allow embargoes before those works must become OA. The 2013 memorandum itself recommends 12 months as the default embargo.
I'm writing to urge OSTP to reduce and ultimately eliminate these embargoes. They deliberately slow public access to publicly-funded research. In this way, they hinder researchers, research institutions, and research itself. For the same reasons, they hurt taxpayers who funded the research and for whom federal policy should maximize the public benefits of publicly-funded research.
These embargoes were created in response to lobbying requests from publishers. In that sense, they benefit a private interest at the expense of the public interest. Yet to this day there is no evidence that eliminating embargoes would hurt publishers.
For example, the September 2013 report of the UK House of Commons Select Committee on Business, Innovation and Skills reviewed the state of the evidence and debate. The committee concluded that "there is no available evidence base to indicate that short or even zero embargoes cause cancellation of subscriptions" (Paragraph 44). "We note the absence of evidence that short embargo periods harm subscription publishers" (Paragraph 49).
In reviewing the arguments again in April 2019, Times Higher Education concluded that there is "'no evidence' that zero embargo periods harm publishers." The executive director of SAGE Publications stated that "he had found 'no evidence to say zero embargo periods negatively affect subscriptions'. To remove them completely, he argued, was 'a friendlier policy'." Another SAGE executive said that the company has not experienced any cancellations it could attribute to open access.
If dropping permissible embargoes to zero without prior notice would be too disruptive, federal agencies could follow the example of the Gates Foundation, which announced in November 2014 that in two years it would reduce permissible embargoes on Gates-funded research to zero. That gave publishers two years to prepare and adapt. Since then, the Gates Foundation has required Gates-funded research to become OA immediately upon publication, that is, without an embargo. This policy has not stopped important non-OA journals from accepting Gates-funded research. During the two-year transition period, publishers changed their policies to accommodate the Gates policy, which they would not have done if the Gates OA policy caused them harm.
We saw a similar kind of publisher adaptation when the OA policy at the NIH became mandatory in 2008, over the opposition of most publishers. (This is relevant only to show publisher adaptation after initial opposition; the NIH still allows 12 month embargoes.) Despite their initial opposition, all surveyed publishers have adapted to the NIH policy and publish NIH-funded research under the NIH's terms and conditions.
Four years after its policy became mandatory, the NIH reported the impact on publishers:
The [NIH] Public Access requirement took effect in 2008. While the U.S. economy has suffered a downturn during the time period 2007 to 2011, scientific publishing has grown:  The number of journals dedicated to publishing biological sciences/agriculture articles and medicine/health articles increased 15% and 19%, respectively.  The average subscription prices of biology journals and health sciences journals increased 26% and 23%, respectively.  Publishers forecast increases to the rate of growth of the medical journal market, from 4.5% in 2011 to 6.3% in 2014.
The European-based Plan S takes the step recommended here (September 2018). "With effect from 2021, all scholarly publications on the results from research funded by public or private grants provided by [funding bodies in the Plan S coalition] must be published in Open Access Journals, on Open Access Platforms, or made immediately available through Open Access Repositories without embargo" (emphasis added). Plan S is currently supported by 17 national research-funding agencies.
In May 2019 the Wellcome Trust announced the same step. It previously allowed a six month embargo. But starting in January 2021, it will comply with Plan S and require that "all Wellcome-funded research articles must be made freely available through PubMed Central (PMC) and Europe PMC at the time of publication" (emphasis added).
Canada's new Roadmap for Open Science (February 2020) recommends the same step. See Recommendation 4: “This recommendation aims to achieve Open Access by default without an embargo period” (emphasis added).
Cancer Research UK just announced (April 2020) that it is taking the same step. "We will update our open access policy to require immediate open access upon publication for CRUK-funded articles accepted for final publication on or after 1 January 2022" (emphasis added).
Although I'm not writing on behalf of my institution, my institution made a relevant argument in a 2012 public comment to the OSTP:
[I]f publishers believe that short embargo periods would harm them, they should release data showing it. Researchers, research institutions, and taxpayers cannot be expected to prove the negative, or to prove the harmlessness of short embargoes. Until there is data to show harm, we must act in the public interest and provide early or immediate public access to publicly funded research.
Even if that evidence ever emerges, policy-makers will have choices. As I argued in a 2012 article:
We can act in light of the evidence, whatever it turns out to be. We can weigh the demonstrable degree of harm to publishers against the demonstrable degree of benefit to research, researchers, research institutions, and taxpayers....[W]e needn't assume without discussion that even evidence of harm to subscription publishers would justify compromising the public interest in public access to publicly-funded research. Policy-makers must take seriously the argument that...OA mandates [with short embargoes] could be justified even if they do eventually cause cancellations....[This is necessary] to avoid the mistake of letting public agencies make insurance for publishers a higher priority than access to publicly-funded research.
And I made this related argument in a 2013 article:
[T]he White House should understand that publisher requests for embargoes...are requests to put private interests ahead of the public interest. Even evidence that private interests would benefit from that imbalance should not suffice to bend public policy towards them....[A]ny embargo period is a compromise with the public interest....Public policy-makers should try to identify and achieve the public interest, even when it conflicts with a well-funded private interest....Moreover, even when embargoes are a necessary compromise to get a policy adopted, we should always try to shorten embargoes over time for the same reason that we should always try to get closer to achieving the public interest....Finally, even if short embargoes eventually trigger cancellations of non-OA journals, and publishers can provide evidence (which so far they have not done), strong OA policies may still be justified, and for two reasons. First, researchers and taxpayers will still have an interest in the shortest possible embargoes. Second, there are first-rate, peer-reviewed OA journals not threatened in the slightest by strong OA policies. It's not as if high-quality publishing per se requires subscription revenue or embargoes to protect that revenue.
A common publisher objection is that funder OA policies "interfere with the market". Publishers raised these objections against the NIH policy more than a decade ago, and have raised them now against the possibility of new OSTP action. For example, the Association of American Publishers claimed in December 2019 that the current system of academic publishing is "a highly important and successful marketplace...[The 2013 OSTP] mandate already amounts to a significant government intervention in the private market." In a separate piece it claimed that the Trump "Administration may be preparing to step into the private marketplace." On behalf of publishers, Senator Thom Tillis claimed that changing the current federal OA policy "could amount to significant government interference in an otherwise well-functioning private marketplace."
I responded to these "market" objections in a 2012 book (Open Access, MIT Press). From pp. 38-39:
[This is no ordinary market.] Scholarly publishing is permeated by state action, public subsidies, gift culture, and anticompetitive practices. All scholarly journals [OA and subscription-based] benefit from public subsidies. Most scientific research is funded by public agencies using public money, conducted and written up by researchers working at public institutions and paid with public money, and then peer-reviewed by faculty at public institutions and paid with public money. Even when researchers and peer reviewers work at private universities, their institutions are subsidized by publicly funded tax exemptions and tax-deductible donations. Most...journal subscriptions are purchased by public institutions and paid with taxpayer money. Last and not least, publishers exercise their control over research articles through copyright, a temporary government-created monopoly.
As I wrote in 2010, "Publishers benefit from all these traditional distortions or modifications of the market [state action, public subsidies, gift culture, anticompetitive practices, and government-created monopoly] and only protest new ones that would benefit researchers [and the public]. In formulating their objections, they position themselves as champions of the free market, not as beneficiaries of its many distortions and modifications....To call [ journal publishing] a market is like calling mule a horse."
Finally, I acknowledge and support the arguments from the following organizations already submitted to the OSTP (in chronological order):
The Marie Curie Alumni Association, December 19, 2019, representing about 15,000 researchers from 143 countries
The Open Research Funders Group (ORFG), December 20, 2019, representing 16 private research-funding organizations, with assets exceeding $100 billion
A group of nine nonprofit public-interest research advocacy organizations, January 8, 2020, representing the American Library Association, the Association of College & Research Libraries, the Association of Research Libraries, the Association of Southeastern Research Libraries, the Coalition of Open Access Policy Institutions, Creative Commons, Electronic Frontier Foundation, PeerJ, and the Scholarly Publishing and Academic Resources Coalition
A group of nine nonprofit academic publishers and scholarly societies, January 17, 2020, representing the Association for Research in Personality, the California Digital Library, eLife Sciences Publications, F1000 Research, Frontiers Media, MIT Press, PeerJ, the Public Library of Science, the Society for the Improvement of Psychological Science, and Ubiquity Press
U.S. Public Interest Research Group (US PIRG), January 16, 2020)
Director, Office for Scholarly Communication