Lawrence Lessig on John Conyers and Open Access

From: Stevan Harnad <amsciforum_at_GMAIL.COM>
Date: Wed, 4 Mar 2009 14:39:57 -0500

Lawrence Lessig (LL) has just written "John Conyers and Open
Access," a trenchant and useful critique of the Conyers Bill's
attempt to overturn the NIH OA mandate. But there is one crucial
error in LL's critique: It conflates (1) (Gold) OA publishing (in OA
journals) with (2) (Green) OA self-archiving (of articles published
in conventional non-OA journals).

What the NIH is mandating is Green OA, not Gold OA. So what the
Conyers Bill is trying to overturn is Green OA self-archiving
mandates (of which there are 65 others, besides NIH's), not Gold OA
publishing mandates (of which there are none).

It is hence somewhat misleading to write in this context, as LL does,
      "Open access journals... have adopted a different
      publishing model... [and] NIH and other government
      agencies were increasingly exploring this obviously
      better model for spreading knowledge."

What both NIH and FRPAA are and were exploring is mandating Green OA
as the better way to spread knowledge. Once Green OA becomes
universal, we already have OA. Whether or not -- and if so when --
this will in turn lead to a transition to the Gold OA publishing
model is another question, and a hypothetical one. And it is
certainly not what NIH is mandating and the Conyers Bill is
attempting to unmandate.

It is true, of course, as LL states, that "[p]roprietary publishers,
however, didn't like it" [i.e., the NIH OA Mandate], but not because
Gold OA was being mandated: Publishers would be perfectly happy if
NIH were foolish enough to take some of the scarce funds it uses to
support research itself and redirect them instead to paying
publishers for Gold OA publishing fees (especially at today's going
rates). (In fact, I believe publishers even did some lobbying in that
direction, trying to persuade NIH to mandate Gold OA instead of Green

But what it was that publishers were actually unhappy with
was mandatory Green OA self-archiving. The majority of journals have
already formally endorsed elective Green OA self-archiving by their
authors, because of the growing pressure from the worldwide research
community for OA. But only about 10-15% of authors actually bother to
take them up on it, by self-archiving of their own accord, whereas
Green OA mandates by funders and institutions will eventually raise
that percentage to 100%. 

And that's the real reason publishers are lobbying against Green OA
mandates: They feel it might one day make the subscription/license
model unsustainable, and may hence eventually induce downsizing and
transition to the Gold OA model for the recovery of the (much
reduced) costs of publication.

And it might. But that is all just hypothetical. Treating the actual
NIH mandate (and the Conyers Bill's attempt to overturn it) as if it
were a mandate to convert to Gold OA publishing (rather than just a
mandate to self-archive papers published in non-OA journals, so as to
make them [Green] OA) not only mischaracterizes what it is that NIH
is actually mandating, but it upgrades a mere hypothetical conjecture
into what then looks as if it were an actual, current, direct

Talking about Green OA as if it were tantamount to making
subscription/license publishing unsustainable is actually playing
into the hands of the anti-OA lobby. This doomsday scenario has often
been used as a scare-tactic by anti-OA publishers themselves
(sometimes with temporary success) to blur the difference between
Green and Gold OA as well as the difference between hypothesis and
reality. But in most cases this only succeeds as a temporary delaying
tactic. Eventually the illogic is reversed, and the optimal and
inevitable prevails.

I think it is both a factual and a strategic mistake for the pro-OA
lobby to (inadvertently) reinforce this doomsday tactic on the part
of the anti-OA lobby by conflating Green and Gold OA along much the
same lines, especially with respect to what the NIH mandate is
actually mandating (and even if one's heart is really with Gold

Yes, universal Green OA might eventually lead to a transition to Gold
OA. Or it might not. But that is not what the NIH mandate is about,
or for. And it certainly is not what the NIH is mandating. 

The NIH is mandating that its fundees provide (Green) OA, now, not in
some hypothetical golden future, so that all research, researchers,
their institutions and funders, the R&D industry, teachers, students,
the developing world, and the tax-paying public for whose benefit
most research is being funded and conducted -- rather than, as now,
just those who can afford subscription/license access to the
publisher's proprietary version -- may access, read, use, apply and
build upon the research that research funders fund, research
institutions conduct, and tax-payers' money pays for.

Research is not funded or conducted to provide revenues to the
publishing industry. Publishers are service-providers for the
research community and they are currently being paid in full through
subscriptions. Perhaps one day they will instead be paid through
publication fees, perhaps not. That is not what is at issue with the
NIH mandate: OA is.

The publishing tail is trying to wag the research dog with the
Conyers Bill, by treating research as if it were no different from
Disney cartoons. The tax-paying public needs to reassert mastership.

      [See also James Boyle's brilliant spoof on the Conyers
      Bill in the Financial Times: "Misunderestimating open

Stevan Harnad
American Scientist Open Access Forum
Received on Wed Mar 04 2009 - 19:41:20 GMT

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