Re: US Federal Research Public Access Act of 2006

From: Stevan Harnad <>
Date: Fri, 26 May 2006 15:20:13 +0100

In Fri, 26 May 2006, [ANON] wrote:

> Thank you for your comprehensive reply.
> I wanted to see the implications of involving the third party (journal
> publisher) in the OA constituency in legal terms. There is a definite need
> for the formal journal refereed journal publication system. The issue that I
> am facing is I am not able to see that all the stakeholders - researchers,
> research institutions and journal publishers - are able to follow the same
> legislation that make them bound to OA Act.

How can journal publishers "follow" the same legislation? They are all over the
world and they are not bound by any country's legislation except inasmuch as
their authors may be bound by it.

Conditions governing funding affect the fundees and their institutions
directly; not publishers, who may or may not be indirectly affected
to some degree.

Of course, the publishers potentially most affected indirectly by
an author self-archiving mandate would be a country's own national
publishers, inasmuch as their journals contain content all or mostly
from authors in that nation. But as Barbara Kirsop and her colleagues
have reported, national journals stand mostly to benefit from OA, and
that has been the experience of national OA journals (e.g., Bioline).

OA self-archiving has a weaker effect on journals in general (because
content is distributed and self-archiving is anarchic) but for national
journals, a national self-archiving mandate is likely to have much
the same effect that Barbara has reported for OA journals: Enhanced
visibility, usage and impact. (For international journals, a national
OA self-archiving mandate is unlikely to have much effect until many
nations adopt it.)

> Now scrutinise the text of FRPAA, 2006, it mandates
> submission of electronic version of author's final manuscript of
> original research papers that have been accepted... incorporation of
> all changes resulting from peer review...the replacement of the final
> manuscript with the final version if... the Publisher consents to replacement...

I have keyed in the pertinent passage here, and I think it covers everything
that needs to be said:

    "4(b) Each Federal research public access policy shall provide
    for... (1) Submission to the Federal agency of an electronic version
    of the author's final draft manuscript of original research papers
    that have been accepted for publication in a peer-reviewed journal
    and result from research supported, in whole or in part, from funding
    by the federal government... (4) free public online access to such
    final peer-reviewed manuscripts... as soon as practicable, but not
    later than six months after publication in peer-reviewed journals...
    (6)(A) in a stable digital repository maintained by the Federal
    agency; or... any repository meeting conditions determined favorable
    by the Federal agency, including free public access, interoperability,
    and long-term preservation...."

There is no need for the publisher's version; the author's final corrected draft
is just fine.

> Now, I presume that we are advocating for putting the final journal article
> in OA. If the publisher permits such archiving then researcher is allowed to
> put his paper on OA. But if the journal publisher does not permit the
> researcher/ research institution to put papers in OA, it may not be possible
> for the researcher/ researcher institution to put the article on OA because
> of the copyright/ patent laws. At the same time, FRPAA, 2006 clearly
> mentions that anything in the FRPAA, 2006 shall not violate US patent and
> copyright laws (refer to (e) at page no. 5).

(Not necessarily the publisher's version, the author's final corrected draft is

And the general solution is very simple: Immediate deposit of full text and
metadata is mandatory, but whether access to the full text is set as Open Access
or Closed Access is up to the author, and depends on the copyright transfer
agreement. Ninety-three percent of journals officially endorse immediate OA; for
the remaining 7% access can be provisionally set as CA. Immediate deposit should
still be mandatory in all cases.

> Now in the case of journal articles, the case is more complicated. Because
> they are distributed internationally and national laws can not bind journal
> publishers beyond their territory to comply to their OA legislation. If a US
> scientist publishes an articles in international journal published in another
> country protected by its own copyright laws, the FRPAA cannot force the
> journal publisher to publish that article on OA. The researcher is also
> handicapped to do so, yet he is obliged to do so because of the FPRAA
> mandates. And there is an international copyright treaty which most of the
> countries adhere to. So I find a dichotomy here. That means that the
> government must bind also the third party in the OA legislation in order to
> mandate the researcher to put his works on OA.

You are quite right that a requirement to set access as OA rather than CA in
cases where the journal does not agree to that puts the author in the position
of either having to violate the FRPAA or give up on publishing in that journal.

The simple solution is to publish in that journal and provisionally set access
as CA. Email eprints will take care of this gap for the 7% of journals involved,
and meanwhile 100% of articles will be immediately deposited, 100% of their
metadata will be immediately visible to all, 93% of the full texts will be
directly accessible via OA, and 7% will be CA but semi-automated individual email
requests, facilitated by the IR software, will fill the access gap till the
embargo period is over.

(I think the clout of the FRPAA would be big enough to ensure that most embargo
periods will not exceed 6 months.)

Stevan Harnad
Received on Fri May 26 2006 - 15:51:13 BST

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