you point one since we don't have another subcommittee hearing set between now and september twenty sixth if we don't have a lame duck session and i certainly hope we don't but this could be the last hearing that i get to share with my dear friend howard coble who has been a really wonderful partner on so many issues both when he was chairman and and and and now during the time i've been chairman and so you know i'll miss doing that i'll still be down the row a few seats but but someone else that when the situation was reversed slightly and then i would like to very much thank your mankind years and generally and particularly on this issue and focusing the sub committee's attention on the impact of the and i open access policy on copyright law i chairman conyers introduced h r sixty eight forty five the fair copyright and research works act which deals with the extent of copyright protect for scientific journal articles the federal government through agencies like the national institutes of health and the national science foundation funds billions of dollars in research every year much of this funding is provided to researchers in the form of grants it's common practice for these researchers to write one or more articles concerned in the findings of their research for publication in a scientific journal as a primary way of disseminating research results researchers to receive these grants have historically been free to copyright their manuscripts this meant that researchers could choose could assign their copyright in the manuscripts if they if they so choose and to whom they choose as to who they choose this has fostered a system whereby researchers frequently assign their copyrights to journal publishers who in turn provide a peer review process for the manuscripts prior to publication the peer review provided is a lengthy vetting process by experts to ensure the science discussed in the articles is sound th costs of peer review are largely borne by publishers this is tim has been successful in disseminating the information produced to publicly funded research today there are thousands of journals being published ranging from the well known new england journal of medicine to the more esoteric advance journals like advances in the anatomic pathology these journals are widely available to the public either directly via subscription or through libraries and provide lengthy discussion of the results of federally funded research critics of this system argue that the public should have free and unfettered access to scientific journal articles that discuss federally funded research live barry's public advocacy groups and some federal research funding agencies have pushed for implementation of open process open access policies apply couple to federally funded research projects in tees so met a copy of the of their peer reviewed manuscript for publication on the agency's pub med central website publication the articles on pub med central is to occur no later than a year after initial publication of the journal in which they appear articles their peer on pub med central will be in p d f format and will be freely available to the public to read download and print open access advocates argue that as a matter of principle the public should have free access to journal articles because the public has already paid for the research results furthermore they are you that the high cost of journal subscriptions effectively limits their available public and that under an eye policy journal publishers will retain the copyrights in their articles and that the publishers are in no danger of going out of business because they make the bulk of their sales in the first year of publication however many publishers argue that while some may view the open access policy as simply a contract issue then i mandate in fact undermines the rights of copyright owners by greatly eliminating their right to control the access distribution and copying of their works opponents also argue that this sort of open access policy jeopardizes the financial viability of most journal publishers publishers expect that many customers will for a likely forgo continuing their subscriptions and simply wait for the articles to be feeling available on pub med sensual ultimately opponents argue and open access policy w the peer review process and the current robust nature of scientific journal publishing at risk the fair copyrighted research works act will essentially turn back the clock to the policy framework and effect prior to the two thousand and eight consolidated appropriations act it prohibits federal agencies from researching from requiring researchers as a part of a funding agreement to assign or license back to the agency their copyright in extrinsic works the act defines experience it works as any work where a third party either contributed funding for the research underlying the work or provided meaningful added value to the work meaningful meaningful added value in this context is meant to include providing a peer review process i see merit to both sides of the open access debate on the one hand it's only natural for taxpayers to expect to receive the fruits of what have paid for it so also it's a fair question to ask whether copyright is promoting the progress of science in the useful arts if its results and most if it results in a system where researchers can't afford access to protected works on the other hand journal publishers clearly provide a significant and valuable service to the scientific community in the form of peer review will happen what will happen to scientific publishing and the peer review process in the absence of a strong copyright incentive to difficult question indeed and it is one which requires substantial and care for view unfortunately this committee was never given an opportunity to evaluate the merits of the competing sides in the open access debate before the n i mandate was made law and the two thousand and eight consolidated appropriations act today's witnesses however i am sure will help catch us up on this issue and w a member and i had to have enjoyed the howard and how good luck to you and your other ventures how are you taking on bigger bigger thank you and i do want to say that by m my reference to sort of the swan song was not was only in the context of formal hearings there are dozens of those i would like to sneak out in the last couple of weeks of session i understand that the chairman thank you for calling he publicly accessible within twelve months after the date of publication the house appropriator decided to create this mandate just a voluntary compliance rate among grantees during the previous three years was conyers and writing member smith some old letters that our participation was based on jurisdiction or grounds the new policy may affect the exclusive rights of copyright holders i believe it is important that the private publishers of medical journals argue that they expand on average three to four thousand dollars to peer review and publish a quality article regarding the role of the health care topic they emphasize that their only incentive to make such an investment is by acquiring the copyright in the article from the author the end i grant recipient from public from the publishers perspective the n  policy effectively reduces their exclusive rights and i copyrighted work to twelve months further in the absence of the value added by private subsidize peer review and publication publishers assert that less relevant medical information will be disseminated to the public in a timely manner they argue that and i not in the business of evaluating individual studies and publishing the meritorious one bombing of the publisher and maintain the policy violates our international treaty obligations beyond this point they believe are to repeal this policy will only encourage the lax regard for ip globally message since this subcommittee has led the fight against overseas piracy and anti counterfeiting and contrast and i defenders would wish you to disseminate medical knowledge more quickly and widely believe that recipients of federal funding should be required to share their work products with the sponsoring public they argue that the mandatory and i policy only requires the grant recipients to provide the agency have to accept federal funds to conduct the research support of the n i policy also maintain that the new mandate is consistent with our ip treaty obligation under trips and the bern convention and fact and i know that europe canada and australia have amended their funding contracts grant argued and grant agreements to require as a condition of support that alters deposit their final manuscripts and a publicly accessible online digital repository not personally i co sponsored yet because i need more time to learn and think about the issue ultimately our subcommittee must decide whether the purpose perpetuation of the policy will promote or inhibit the development and dissemination of medical knowledge again this karen maginnis is a difficult but good thank you very much pleased to recognize the chairman of the judiciary committee and the sponsor of the legislation on which this hearing is being conducted mr conyers thank you mr chairman  we're beginning under some very questionable premises here this afternoon first of all the swan songs and farewell goodbyes are considerably premature as i recall the history of what happens under the circumstances that we have between an election day and the swearing in on january twent change you can believe in yeah right this can change could also be part of that is this you know everybody is claiming this change thing and it's got down to  this committee right that the chairman of the subcommittee is claiming change right here i know of no look my recollection of what happens in between a presidential election and the swearing in is that there's an emergency session i mean i know a whole turn and there's nothing wrong with hope but for goodness sake  folks i can imagine that either of the candidates that emerge successful and that the leaders of the congress under the circumstances that we've only passed we haven't even passed appropriation bills this is a continuing resolution that's in front of us so we don't have an emergency we don't even have an energy bill goodness we're not anywhere members of the committee no which is a good thing from my point of view because howard berman has been such an effective chairman and just sit in the subject across the years  but for my distinguished ranking member to say this is a complex subject in which he needs more time just bob how much time does he think he needs on this we we've had this thing for months and months and months and he sent a letter along with you raising the questions that have led to this hearing so if i can lower ranking member some staff or even meet with him about this i'm sure we can get him to become an enthusiastic co sponsor of the bill will make your me even retroactively an original co sponsor we began the subject examining whose jurisdiction this is in the first place i hate to be so crass to raise these kinds of internal congressional questions but here we have the powerful committee on appropriations that determines where every penny of the several trillion dollar budget goes in the united states of america and around the world now reaching into the sacred jurisdiction of the judiciary committee in fact the most powerful committee in the congress to take to take this little subject of intellectual property and copyright law and decide to deal with it summarily unilaterally and probably incorrectly know why why why or why is this being done the fact of the matter is that we have tried to communicate repeatedly with the leader of that committee that that all second most powerful committee in the congress and what do we get i've got the letters we're putting in the record written by various three and and what do we get nothing i mean not even a response zero in other words judiciary committee you've got so many things to do we've got more than you so please don't bother us with letters about these questions about property that the institute of health and all of these kind of thing we we've done it for you and so we're forced know they have a hearing that will determine we may be considered lucky to even gotten the bill referred to us they may have sent the bill to the appropriations committee the way this show is getting off the tracks so we're here we're here first of all to without being offensive or belligerent assert our jurisdiction this is a subject matter for which howard berman and mr cob this this isn't a slam dunk situation but it isn't the most complex subject that we've ever handled and so i am happy to be here to begin to look at this for the first time with our committee there are a lot of questions out i'm going to put my statement in the record since the vote has the bells have rung for a vote and  look forward to hearing from our four distinguished witnesses that are before me and i thank the chairman for his time i thank you can we go to the witnesses mr chairman if i could briefly  sure first of all i'd like to thank the chairman for and the ranking member for allowing me to be an original co sponsor howard your your indecision gave me an opportunity and i thank you all the retroactively you could be the original co sponsor on our side right of the people to have the data that is created by not just the national institute for health but but to be honest by government at government expense we want them to have the data we want them to have the knowledge what it's very we're is in the promotion of the publications that we want published we want to maintain the benefit ordinarily accorded to copyrights and that's really the balancing act that i know we're going to hear about today and that we're going to try to achieve with this legislation is exactly that we want to preserve protection under section one hundred two we clearly though want to make sure that the american people through th publications do end up with data and knowledge being made available to people and that those sources from which the data and knowledge came are made available and timely fashion that balancing act is important to the director of the and i i first had an opportunity to talk to the issue of the substance of this and what was the appropriate committee to deal with  it but as one who will be who will be chairman of the committee that is nowhere near either the first or second most powerful committee my relationship with the chairman of either the first or second most powerful committee made me more diplomatic dr l e d s zerhouni is director of the national institutes of health the nation's leading medical research agency he oversees has twenty seven institutes and centers with more than eighteen thousand employees and a budget of twenty nine and a half billion dollars from the university of algiers and completed his residency at johns hopkins he is the author of to an end twelve publications and holds eight patents speaking of patents oh no no to two thousand and eight he was counsel and the washington office of deckert l p before entering private practice mr oman was the register of copyright to the united states and before that previously served as by chaired that committee mr allman received his j d from georgetown university law center heather dahl terrio josep serves as executive director of the scholarly publishing and academic resources coalition spark a membership organization representing more than eight hundred university and college libraries whose mission is to expand the dissemination scholarly research mr ms joseph is also the convenor of the alliance to protect their access a coalition of libraries universities patient advocacy groups consumer groups and other organizations that work to ensure the results of publicly funded research make sure that they are accessible to the public prior to joining spark spent fifteen years as a scholarly publisher for both not for profit and commercial organizations she holds both a b a and m a from the university of maryland and finally dr martin frank as executive director of the american physiological society a nonprofit a membership organization that publishes a number of scientific journals including sell t ology and the journal of applied physiology party joining the a p s dr frank was executive secretary of the physiology studies section at and i and an associate assistant professor at george washington university medical school earlier in his career dr frank served as a research associate at the michigan cancer foundation and then the department of pharmacology and toxicology at michigan state university dr frank received slides that i will show you on on the screen i think it's important to realize that we wouldn't be here unless the world of information technology had not changed if this was a world of paper publications i don't think and i would have developed a policy such as the one we tried to work on why is it that we felt it necessary to move forward in this context first and foremost i'm going to show you here a table that we all have in every institute director's office at the end i these are the twenty three chromosomes of a human being and we have a table where we post every discovery on every chromosome that is resulting from the completion of the human genome i'm showing you here my table in two thousand and five there was one discovery in macular degeneration a cause of blindness i'll show you in two thousand and six we made three discoveries all important in the sense of giving us insights and heart disease and neurology call disease look at what happened between two thousand and seven and two thousand and eight the first quarter of two thousand and seven i had a report of seven discoveries more than we had before the second quarter third quarter fourth quarter first quarter of two thousand and eight second quarter of two thousand and eight there is a true explosion in scientific discovery and when you look at this you have to also see that we have made discoveries that require exploitation many genes as we showed you here in diabetes were not known to us ten years ago now sixteen are known to us if you look at autism last month alone we reported on six completely novel genes we need to exploit this discovery at a rapid pace but to exploit these very complex discoveries we need to have access to all of the publications and all the data sources of scientific you can see here also the explosive growth of knowledge these are the databases that the national library of medicine and c b i the national center of bio technology information have been putting in place since year two thousand look at the growth we have over two million users a day coming to an i h four to look at our databases two million years is much more than just scientists we don't have that many scientists this is used by the public by teachers by students by patients by their parents sixty percent of our patients now go to the doctor with information extracted from these databases and if you look at this and you put yourself in my position i have to promote science and how here is the picture that i see we can define the problem we have multiplied by orders of magnitude the amount of scientific information it is very fragmented it is quite disorganized and we know now that to make progress we will need to interconnect all of the discoveries were making and make sure that the scientists and anybody who needs that information is able to exploit it in the entered a in the internet age because the real value is in the full connect not just the posting of the passive document it's the connectivity of all available electronic sources of scientific information and that efficient exploitation with the new powerful engines of software that are used in the modern search engine technologies and not just in a passive display this is what twenty first century science and health require given the current explosion of knowledge and what and i need to keep its competitive edge worldwide how have we done this so if you look at public at central for example you would think it's one database in fact it's a small portion of the whole family of databases and i'm just showing you a few here that genome there on the top right and then protein structures and then molecules that we know are therapeutic molecules all of this needs to be functionally integrated it is not enough for a scientist to go to every one of these databases and ask information about what they could do research on or for a patient to come in and have access to one article devoid of it's context what i think we see is this let me just demonstrate for you the world as we see it before public access so let's say you're interested in ovarian cancer and you go to google and at the top of this you say i want to know about tumor biomarkers for the detection of ovarian cancer ninety nine percent of google searches will show you a and c b i database as the answer to those queries when you go to google you'll find for example in this case there was an article that was published and that would link you up to the problem at central so you go to public at central and you find the article it also tells you there was funded by the national cancer institute for three grants and then you want to know about it and we always link all of articles to the original sources so you click on the link and you go there and here you go this is the world before public access thirty one dollars and fifty cents if you want to read that article but that's not where the value is the value of public access in this age is different let me show you what the new world will be if you look at today's databases and you look at the and ice databases four out of five articles are not available for exploitation for looking at the content of the article and understanding of that and to related to another area of research that you really need to connect to but if you look at what we see the door of the world of the public access let me show you let's say you are interested ovarian cancer again and you want to find out if the genes that really promote that growth so sure enough you signed a paper that papers from the proceeding of the national academy of sciences which actually gives the of the avail of the access to the paper and then the next thing you do you look at it and then you ask yourself a question because our scientists have developed our full tools what you see here on the lower right corner left corner here is if you want to know any related article you just push a button and it gets there if you want to know the gene if you know know the substance of the protein and look what happens in this case the paper was there the scientists looked at it and guess what they connected to an article they didn't know about that had to do with prostate cancer in fact where the same gene b thirteen was also active  prostate cancer that is a connectivity where the whole is much greater than the sum of the papers that supported that whole and that's what we want to have to accomplish so when you look for example at pub med search results you can look at the paper you can look at the chemical structure you can look at the countdown and the view of the chemical proteins all at once now let me just say that this is a very powerful we discovered sars in two weeks and if i may mr chairman have one extra minute i'm sorry to be on time but i want to say that there is in our view not real evidence of military impact on public access we have over four hundred journals that participate already since two thousand and all of them provide their content within twelve months no evidence that has this has been damaging to websites such as hire our press my friend marty frank actually publishes their own papers in a public database at twelve months there is no evidence that this has been harmful more importantly i want to you know that we've been cautious and open and we have followed a long process of four years of interactions with publishers and congress and clearly the policy is working today we have a fifty six percent compliance rate and we have something that is remarkable that is that may need publishers today a deposit in our author's articles on the author's behalf blackwell publishing nature publishing some within six months and  that's being remembered remember that we are the least ranges of the policies that have been developed and we fully believe that is consistent with copyright law because we are not taking away the copyrights of authors to the publisher they can reproduce articles they can the really drive work they can actually charge for any derivative or still use we only require a non exclusive license after twelve months of embargo and this is truly in my view a copyrights representing as i always have the public interest i don't have a dog in this fight financial or otherwise i teach copyright law as you mentioned at george washington university law school i do not represent any of the parties but i'm like an old fire dog when the bell rings i come out running in the defense of the copyright system you have my formal written statement and this afternoon i would like to elaborate on one or two basic points my written statement gets into the policy issues which my fellow colleagues at the witness table will get into in greater detail my basic concern about the new and i h public access proposals is its dilution of the rights of the copyright owners in my opinion it will destroy the commercial market for scientific technical and medical journals if the publishers go out of business because of because of this new and i h publication policy we will lose a very valuable professional resource for scientific advance with plummeting sales how could the s t m publishers possibly stay in business the dramatic evidence of scientific advances that doctors are who only made reference to  breast taking but in my opinion they are not in any way threatened by a greater respect for the rights of the copyright owners the n h policy in fact should change in a way that respects the spirit and letter of the copyright law in that way we could achieve the basic constitutional purpose of copyright and that is to promote the progress of science and advance learning and by that way doesn't waste its breath when it as a provision it adds a provision for a reason the appropriations committee deliberately added the public access language in section two eighteen of the bill that it refined and clarify that language meaning that congress just as easily could have left it out because the policy in the director's opinion is consistent with copyright law i disagree on that assessment as i noted in my reply written statement what congress was telling to the director to do was different you congress were telling him to figure out a way to accomplish congress's public access objectives in a way that respects copyright he has many ways to do that let me give you one example of how he might do stew so he could require submission of the peer reviewed manuscript to the national library of medicine for security and archiving purposes and for the internal review and use  experts for those copyright owners and there are some if not many who agree to free public access he could allow the publication of their manuscripts on the pub med central website after a twelve month period for all other articles those developed with an eye funding the director could instruct pub med central to provide links with a brief summary to the publishers website set as apparently they are doing now where the public could gain immediate access to all of these manuscripts that revised policy would fulfill congress's desire to have all all of the government funded articles called publicly available within twelve months without running roughshod over the rights of the copyright orders i repeat the appropriations legislation does not say free public access within twelve months it just says public access and i think the director may have misunderstood the congressional mandate to me it seems far more likely that congress will achieve the desired objective which is the broadest possible dissemination of peer reviewed article manuscripts under the current system with the strong copyright  protection that we now have under the copyright laws the private s t m publishers will run the peer to peer process they will select the articles they will aggressively market those journals to libraries and other research institutions both foreign and domestic the current system lets the publishers bring their professional judgment and expertise into the process and ensures high quality scholarship pays descriptions keep the current system perking along without intrusive government involvement and without an infusion of funds from the government treasury to support the work that is now done by the publishers if the n h provision is fully implemented you will almost certainly end of this self track and will prevent other federal agencies from wandering down the same counterproductive path i urge its early passage thank you mr chairman for having me back i would be pleased to answer any questions and especially chairman conyers thank you for the opportunity to testify today on this proposed legislation i'm speaking today on behalf of spark the alliance for tax payer access and the association of research libraries and i'm here today because these organizations represent the end users who currently benefit from access to the work that would be affected by this legislation sparking errol represent libraries which are the customer base of the journal publishing industry as you heard earlier spark also coordinates the alliance for tax payer access which is a very active coalition of patients advocacy groups and other organizations who are dedicated to ensuring that the public receive access to the results of research funded using taxpayer dollars i'm also here as you heard because i spent fifteen years as a journal publisher and i'm here for a third reason i'm here as a mother and as a member of the public who is has an abiding interest in the results of the research that my tax dollars help to support i'd like to express my serious reservations about this proposed legislation and particularly the negative impact that it would have on the availability of vital healthcare information by overturning the crucially important and i aged policy u s taxpayers underwrite tens of billions of dollars of research each year and the sharing of this research is an essential component of our collective investment in science yet despite the fact that we paid for this research members of the public frequently cannot access these findings because we simply can't afford to subscribe to all of the journals in which they're published this is why the organizations that i represent have supported efforts such as the n i m h opponents of the policy have expressed a variety of concerns but chief among the concerns and underwriting them is the fear that the policy will create a resource that will compete with journals the concern is that their primary customer the library community will view the availability of an author's manuscript in pub med central as a as an adequate substitute for subscribing to a journal and as a result cancel subscriptions this fear is unfounded first the policy the current policy is a compromise that contains safeguards against this happening authors are required to deposit only the final accepted manuscript the raw word processing file not the fine copy edited and copyrighted version that will ultimately appear in the journal second the policy allows an embargo period of up to one year before a manuscript becomes available in the fast moving world of biomedical research information after one year is old finally few if any journals publish only research articles that have resulted from managed funding the vast majority of journals publish articles resulting from other funding sources along with review articles commentary and other value added material as a publisher i have worked for organizations who have voluntarily deposited their content central one the american society for cell biology has made the research articles from its journal available on pub med central with only a two month embargo period since two thousand and one the society puts also all of that journals content into the database not just a fraction supported by the end i each funding yet the revenue generated by that journal has continued to increase since two thousand and one and the number of articles downloaded from the society's website has increased as well and the s t b is not alone as a publisher experiencing these results several hundred other journals have similar policies listed on the pub med central website none would do so if their revenue was threatened in any way finally as a mother and as a member of the general public the united policy addresses a very real need the information contained in the pub med central database is crucial health related information that can make life and death differences in the lives of the public currently the database contains more than twenty seven thousand articles on malaria fifty thousand on aids and more than seventy seven thousand on diabetes research it is a vital resource for individuals looking for health care information and i know this personally because when my five year old son was diagnosed nine weeks ago with auto immune insulin dependent diabetes i did what is in our team i got out i googled every piece of current information that i could find i did this from home and i did it at three o'clock in the morning the night we got home in the hospital desperate for information that could reassure me that there was something i could do besides wake my child up twice a night to check his blood sugar for signs of hypoglycemia i found a two thousand and eight study of continuous glucose monitors that rated parent and patient satisfaction in the prevention of these nighttime low notably the study was available the study that was available was the author's final manuscript that had been posted one month before available soley because the policy was in place the policy strikes a careful balance between increasing access to the literature and respecting the concerns of the publishers by operating within the current copyright structure the policy in no way conflicts with the us copyright law the agency receives a non exclusive license from the researchers who retain their copyright and are free enter into publication agreements with journals subject to the standard federal purpose license the fair copyright and research work act would overturn the support and much needed policy by prohibiting agencies from making the results of their research available in the way they choose to the public this bill would significantly inhibit our ability to advance scientific discovery the legislation is not in the best interest of the taxpayers who fund the research the scientific community or the public who relies upon it thank you once again for the opportunity to testify thank you mr chairman and members of the subcommittee thank you for the opportunity to testify today as you noted on the executive director of the american physiological society and also the coordinator of the principles coalition and i've also been a scientist reach researcher and an extramarital employ at the national institutes of health i've submitted testimony in support of h r six hundred four five and will highlight some of the issues raised in these comments h r six eight four five will help ensure that the federal government does not diminish copyright protections for journal articles in which private sector publishers have made a significant value contribution by protecting copyright the act will continue to provide incentives for investment in the peer review process which helps ensure the quality and integrity of scientific research the a p s is a natural profit society founded in eight hundred eighty seven and our first journal american journal of physiology date stayed two hundred ninety eight the d c principles coalition was founded in two thousand and four by natural profit publishers who believe in free access to science and to make the full text of their journals freely available within the constraints of their business and publishing requirements the coalition is a diverse group comprised of seventy three publishers we publish nearly four hundred journals ranging from top tier medical and research to small nation publications because we are so different the coalition has always supported its members desire to make their own decisions on when to make their content freely available for free access after two years after two months because once policy does not fit the needs of all publishers many of the d c principles coalition members work with high wire press as noted by doctors or who need the largest repository of high impact peer reviewed scientific content including two million free articles coalition members also provide access for scientists in the developing world by in w h o initiatives such as henry and a girl patients can get access to our journals beef via patient request links and through patients and form a publisher initiative designed to provide patient access to research articles and commentaries relevant to their medical conditions as scholarly publishers it is our mission to maintain an enhanced the independence rigor and trust and the visibility that have established our journals as a reliable filters  right information emanating from basic and clinical research we do so through the peer review process the evaluates the strengths and weaknesses of submitted scripts selecting those that meet the journal's high standards of publication some say that funding agencies have rights to the articles rented written by their grantees while the agencies pay for the research the publisher bears a cost of peer review and publishing article should not be taken from those of us who have invested heavily in their creation by imposing a mandatory policy without oversight by responsible congressional committees and i choose diminished a basic principle under copyright namely the right to control the distribution the works we publi i could have provided access to its funded research without diminishing copyright protections it could have followed congress direction under the america competes at which authorize an s f to provide access to research reports and summaries as well as citations the copyrighted articles rather than the articles themselves alternatively i could have worked with publishers to provide access through existing links associated with journal article abstracts posted on pub med under the mandatory policy and i h has become a publisher it has created a platform that competes with not for profit and commercial publishers alike it takes the article from the publisher after it has done the heavy lifting of validating the science through the  consuming peer review process and i was next step is to enhance this content further by linking it to databases and resources not readily available to small publishers as pub med central becomes increasingly valuable in singular resources and vision by mr joseph becomes more likely that journal subscribers will opt to access articles from and i choose website rather than the journals this will lead to subscription cancellation as suggested by studies discussed my written testimony we are gravely concerned that the funding base of some journals may be eroded to the point where they can no longer adequately serve their scholarly communities some may be forced to increase or author fees at time when funding for research is shrinking as a result researchers will be disadvantaged in one case by having less freedom to choose where to publish or what community to reach and in the other failing to have adequate resources to fund research design to develop treatments and cures for disease as author fees eat away at the research dollars provided by congress thank you for hearing my testimony i would be pleased to answer your questions and responses issues raised by the other panelists thank you all very much i recognize you spoke about the appropriations committees concerned about the lack of access to an i supported research reports and data's data let's assume the both perspectives of narratives are valid there needs to be greater public access but that but it is important to remember the incentives for publishers to provide peer review and things they do is is the national science foundation policy that apparently was mandated by the america compete act that dr frank spoke about is that a realistic and sensible middle ground the information that the summary of the research as provided to the public through the database and other and  i means and but the did journal article remain subject to distribution by the publishers like the copyright owner we do not believe so and i'll tell you why i think that he reviewed articles are very important the peer review process is critical you cannot just have a self reported scientific report of activities under a grant to replace the full effort that an author has to make to understand all of the other literature to write their publications to submit their data and therefore it is very important for us to understand that what's key here is to have a database of costs we allow our grantees to pay publishers who request that cost of page charges or reproduction charges or figure charges we do not prevent our grantees from paying for those calls so when i made the comment in my opening statement that several thousand dollars are free only paid by the journals to produce period view process you're telling me that and if i look further i would find out that the researchers are passing on the money the grant money you provided them authorized by the terms of that grant to the journal we could sit or publication cross part and parcel of the scientific process we've always a law those costs are currently and where that happening is that what is works and i does authorize in there and grant policy statement that research dollars can be used to pay for publication costs the problem is publication costs of three to four thousand dollars for an individual investigators whose grant is already dried up and gone away has to come out of the individual's personal pocket or the university because many of the papers that are published are published post research funding secondly most authors investigators have the opportunity to research or may have been allowed to do it but if you have no money ality have no money budgets like i do it and that money has been spent that money has been spent secondly there are only a small portion of journal publishers who charge three or four thousand dollars for open access for example doctors or who need indicated that there are approximately four hundred journals that deposit into pub med central of those four hundred journals about two thirds of them are traditionally referred to as open access publishers biomed central public library of science all of them who charge authors for publication publication which is a subscription model that the vast majority of publishers use commercial journals for example do not charge generally for page charges for publication they rely on the reader to extract to cover recover the costs associated with that publication process the other side of it the other side of it is this joseph she represents the library community and the library community is of course and has expressed itself with considerable concern about the cost of publication and i have no argument with the cost the publications they say that the rate of increase his far outpaced inflation but the expansion of knowledge has also outpaced inflation and if one looks at the total number of pages publishing compare that the page cost to subscription costs is cost one often finds that there is a parallel more science more subscription my time has expired  ignition the peer review process and therefore provide publication services and furthermore if publishers are forced out of this business will they and i filled the vacuum i would just like to point out that the reality on the ground is the coble currently as you just heard many journals currently make available their authors copy almost immediately many journals make the entire collection that they have available to the public within twelve months i don't know how that is ok on one hand but he does it it's not ok i don't think you can say on the one hand it doesn't damage the economic model and the other hand i completely agree and i think that the evidence that we have from the journal publishing community who have made their managed groups available at twelve months or shorter shows that it's a perfectly viable economic model again this is biomedical information this is time sensitive stuff year old we as a library community cannot cancel library subscriptions in favor of waiting for some subset of this material to be available in a database a year later universities and colleges that we serve demand that we provide access to this situation that we're finding ourselves in now though is paying more and more money year in and year out to be able to provide our universities with access to less and less information mr hellman is there an inherent problem with the federal government orchestrating a peer review and manuscripts selection process if it comes to that and would this responsibility better be left to the private sector national institutes of health are prepared to or capable of providing that type of detached evaluations those judgments that relate to publishing and  a p s has done a stellar job of providing articles on the law within twelve months of publication why do you think the voluntary compliance policy was so low comparison to the present mandatory requirement i think the voluntary plan and instituted was delivered with a somewhat cumbersome upload process and mixed signals to the investigator community invariably mandatory is going to be heard much clearer by an investigator than voluntary i think in general the voluntary community at least my community actually didn't think the program was necessary perhaps because at least from my journals we make them available twelve months after publication whether it's and funded the critical factor there however is that it has been my financial and business decision to make it available after twelve months and should it not succeed i can always roll it back to eighteen months or twenty four months with the and i each mandate with the fact that at least for the american physiological society which has about fifty percent of its articles funded by the national institutes of health they have essentially told me that i cannot roll back my access period  have some questions but you four are particularly articulate and knowledgeable this is a stunning hearing that we only wish could have taken place before our other committee which i now consider to be third ranking only to the foreign affairs committee which i think now precedes it but could we have a discussion amongst you in connection with what you have heard and been impressed with about your other three review and who pays for peer review how peer review is conducted and actually financed i think the impression is is given some time but not the impression is given the statement is made that publishers make a substantial investment in here viewers are volunteers viewers are unpaid viewers are employees of universities public universities colleges sometimes corporations their salaries are paid outside of the publishing arena publishers do you make an investment in peer review but it's in the administrative coordination of sending an fourteen scientific journals four thousand articles per year that's the cost of my publications program of that about twenty percent of that cost is associated with the sending of e mails that mr joseph has alluded to we had to develop and pay for an online submission and review system we have to support the editorial offices and associate editor make the decisions on who those parade peer reviewers will be in the individual and make the decisions on whether to accept those papers and i have staff within the a p s offices who managed the peer review process it is free when it comes to getting opinions as we know opinions come cheaply the opinion why do we know that around here the opinions we solicit are those of knowledgeable scientists who can stability of the research that has been submitted for consideration of our journals have said here today yeah i think i think it's a it's a very important issue that you're dealing with the chairman i think i wish actually the committee had been more involved with the four years that this discussion has taken place this is a fundamental issue and when you really think about what is being said i think we're misrepresented as the harry snout or whatever we don't want to do peer review because peer review is actually a volunteer activity we fund many of the of the researchers who do peer review through a ni grants from my standpoint i use three hundred thousand dollars of taxpayers dollars ever for every paper that and i each funds eighty thousand papers a year twenty four billion dollars of investment i have to make sure that in the technology world of today we're not fragmenting the information to make the least use of that i have to maximise that for the benefit of science and the benefit of health it seems to me that we have trying to be very consistent with copyright law actually the fact that we're talking legislation means that we are consistent in some ways since if we were not there wouldn't need new legislation but frankly i think what you're dealing with here is not an issue of economic impact we don't see the economic impact not an issue of p can it's an issue of control of the property and i think i understand my colleague concern about control of the property that is generated through three hundred thousand per paper contribution of the taxpayer that's the crux of the issue my friend says control control control who controls i think we are trying to get a sliver to maximize the return on invite amount of foreign investment because of the new technologies basically  you would want to make google legal so that you can preserve newspapers that's not what the world is about today if it wasn't the case we wouldn't be pushing our and finally chairman  and they can only do that if they maintain copyright control over their work they will develop innovative ways of reaching the public at large they will find a way of helping this joseph find an article free of charge at three in the morning the technology is nuanced they can develop special prices for big corporations for large universities for foreign governments that want access to information they can have lower charges or no charge at all for those that that can't pay the freight but we need this control we need this as was mentioned earlier we need this the benefits accorded by by copyright i just directors who need to be a little careful here i assume your reference to google was not about its own you tube and the posting of copyrighted works on  extraordinarily fascinating hearing once again with the well balanced and well articulated positions on both sides of this issue i take it that what we're talking about setting where the government has provided resources for research and defense technology this area that area the internet all of this and second is there a rationale if we are handling it differently in those areas  for setting a different standard for about medical and third is there something magic about twelve months it sounded to me like at least some of this is about whether it gets out there in twelve months or eighteen months twenty four months or thirty six  said well obviously as you know when the government supports an activity there's no doubt that there is a government possibility there it's always been there and the issue between by medical and none by medical really has to do with the public health impact and the timeliness of the information why twelve months most people think six months is the right amount of time you know when somebody has a child you don't want to wait for six months and know about the new treatment so that's the sensitivity to sell with the input of the publishers that because they were already practicing the twelve  months in practice making those papers available that we would parallel our policy to that of the publishers so twelve months is not a magic number it's really a compromise number between what people believe the pace of science is versus what publishers do in practice mr oman i think the basic premise is flawed you asked about government support of other activities i suspect there would be a cry of outrage if the projects that are funded by the national institutes of or the national ballot for the are so the national don't have him out of the yes somehow became bolted into the public domain after six months or a year  that that is not the way government grants normally operate they don't destroy the copyright of the of the creator prematurely they allow the full term of copyright to run and in the  circumstance of scientific medical tests technical journals they are available immediately to the public upon publication through the websites of the publishers i don't know why that science which is what this bill that we're discussing today is actually aimed towards i don't think there is a difference and i do think that if there's a standard being set by the n h then other agencies should consider to hit that bar that it's a good bar that's been set in terms of the time frame that twelve twelve month number again wasn't a magic number that just appeared in the n h policy will come as no surprise to anyone after listening today that advocates for public access advocated for no embargo period we paid for the stuff we should get on day one why wait one day six months was a number that we advocated for but over a three year period twelve months was the agreed upon number the compromise position that everyone felt the policy could go forward on and cause no harm in the publishing community think when we talk about this joseph talked about making the american society for cell biology making its content available after two months if you look at a lot of the journals that have been depositing into pub med central and are making their content available for free many of those are in areas which i as a scientist call molecular biological john gnomic research if you look at the journals in which those articles are traditionally published there are two measures of scientific excellence that are associated with them the first is called an impact factor the impact factor talks about the number of citations which means how often is used by other scientists the other is really a measure of what i will call shelf life the half life how long is the article in those journals generally cited by colleagues in the field for the journals of the american physiological society at least and for many other disciplines disciplines that are more traditionally oriented extends out to seven to ten years where the molecular biological half life might be one or two years maybe three so having a rapid turnover in those f is much more reasonable than in ecological study which has long lasting staying power and so i think that's one of the issues if i may comment also with permission m ohman suggestion he had suggested that create an internal archive and then link out to the journals indeed that's the proposal we brought to doctors are going to be a number of years ago and indeed commercial and not for profit publishers met with doctors or who he and his staff in suggested a creation of an internal archive after all one of the institutes the national library of medicine preserved why would you go to the journal as to say again why would you go to the journal as opposed to well right now the journals control one hundred percent of the content within the covers of the journal right now why would you you still didn't my would you go to the journal as opposed to the author the author owns it the copyright belongs to the author the author usually transfers copyright to the publisher so that the do anything about it if it impacts our subscription base you pay you pay the author for transferring that in biomedical research you do not pay the author for their publication we do pay for the author to the publisher for supporting the publication i think the gentleman thank you got a flavor here thank you so much it's sort of a it's your choice but if you want to publish you transfer ownership is that different from if you want the federal government's money transfer it's a good question apparently not that different very useful but it seems to me as it is doctors who has pointed out that what the and i was doing doesn't have any conflict with copyright law i mean parties can contract around copyright law and do frequently and that's what the and i was doing and in fact that's what the publishers are doing and one of the things that i'm interested in is you know that the people who really have not been discussed here today are the actual scientists and the authors who are the originators of this content but who don't get any rights because they are basically required to give up their their rights in order to have this published and i think that's very problematic honestly one way around that actually is what's happened here and i really think doctors are who your your power point was really terrific to show how the technology and the in the growth of technology is how a lot allowed for interconnectivity and for connections to be made in a way that never could be made in the past so  since i really think this isn't as i've listened to the testimony about copyright law at all it's about science policy and i think you know one of the things that i would like  posted on it i mean the congress has i'm actually on leave from the science committee but i think in addition to the science committee we'd like to know what's going on i think that would help us you know be up to date as this proceeds and it would be help us all be on the same page as we move forward since i don't get to see you very often as i am on leave from the science committee may i ask a non germane question which is in your power point you talk about the six new genes discovered related to autism which is enormously important to the nation do you have any concept of how fast progress is going to be made in the autism area and its genetic base as a product of the way you are now developing the publication of information i think we need  fronts research plan for autism is not only just one source right this is the first time that we have absolute evidence that there are six genes which many of which have to do with neural development which are involved and this comes from studies on the international level with scientists overseas scientists here i believe personally that the number one step right now is to establish a comprehensive plan for autism research that goes from environmental  developmental issues to other issues of definition of what autism really is we're making progress not fast enough in my taste but i think this discovery and the many others we've made over the past two years are truly revolutionary now let me ask whoever knows the answer to this question on we and i h is is making the grants conditioned on sharing this information for the other national institutions that you can research council the european research council the canadian research council trillian research council put out rules that require a six month delay we again mindful of the practice here and realizing that many publishers already do free display at twelve months and so we decided that if they do it damage their economic model or a peer review twelve months should be a good compromise so it's definitely practiced in the private sector as well as in the government sector international and ms joseph add something to that the autism speaks foundation which provides a lot of funding for autism research actually approached  assistance in creating their own public access policy modeled on the policy so yes this is definitely catching fire and the private sector you also asked the question one of the scientists bank we were able to provide a third letter from thirty three nobel laureate scientists this is the third time they've written to congress on the i its policy and the importance of the n h s policy it should be available to you in the in the in the hearing packet the nobel prize winning scientist feel that this is a crucial step forward in science about taking away the value added by the publishers by simply requiring the manuscript to be submitted to the n h at the time they are submitted to the publishers initially while the articles would not have the benefit of peer review at the time they were submitted and i couldn't later did noted that in its database in which the articles were socially accepted for publication and do you believe that the public would then have access the scientific information produced as a result of an age finding well any copyrightable value added by the publishers would still be protected well again i think that we do not want publishers not to do peer review we actually support the role of publishers we want them to succeed in that role to for us to take non peer reviewed articles will be against every cautious prudent management of science you cannot take someone's word for it you have to have an deep and then p review we do this for grants internal to and i each we encourage our grantees to serve on peer review editors or our own we fund them to be able to sustain the cost of publication it would be very unwise to distribute to a government agency non peer reviewed material more importantly what is key here is to enable us to interconnect the ultimate product which is this publication peer reviewed by peers through the whole family of databases that make the whole much greater than the sum of the parts that is what the essence of this policy is all about one night trying to be more than accommodating to not damage or peer review or the economic model but the issue here is control you've heard it is who controls the property is the government at all does the government have any right whatsoever to have a condition of grand award which is voluntary and i'm told that this is not voluntary because you're giving so much money the scientists has no choice so it's like saying the more the government gives the less the government has a right to exploit this for the benefit of its mission it's like saying well the more we give to private companies with the due respect to my colleague the private sector doesn't always get it right library of congress the library of medicine existed with public funds because the private sector did not get that done and last week we saw how the private sector had to have government intervention fannie mae and freddie mac so i think the key issue here is is there a fundamental right that that fork for value provided that we need to get value back for the benefit of what we are being paid for that is advance science and help let me ask mr oh man what's the exact copy write that the n  allegedly taking from the publishers by the policy isn't it really just an expectation of copyrights and any rights that accrue to the publisher from an article that exists at the time an article is submitted for publication are subject any previous liens on the work in other words by the time the publisher is deciding whether to accept the researchers manuscript is it the case that any rights the publisher would have in the manuscript from that point forward would be subject to the private contract original author made with the government to give up certain rights in exchange for government funding and a technical reading of the copyright law that would be true mr goodlatte i would like to comment on two things number one why the public wouldn't benefit from the immediate publication of the on reviewed paper by the author i think that would be a very positive step in terms of of learning the the research period actually in the academic community there is a suggestion that there be post publication peer review as a as a way of moving forward so it can't be that off the wall to suggest as you suggested that perhaps the most concerned about having a nan peer reviewed article sitting out there with an imprimatur which basically says this is ok because anywhere from fifty to ninety percent of all articles that journals and that would be very dangerous  either taking comfort or direction from that might be going down a trail that will leave her even more distressed an upset i don't know i just i mean i from taxpayer funded health and medical research to notions of taking advantage of technology i mean the n n i h is not napster maybe two questions one for me for you and one for mr dr frank and mr home and to you i don't i don't get a little more explicit with me in your training you showed some very interesting slides to beginning you made a obviously good and compelling argument about when you just get all this information dumps a little segments without connectivity they've the ability to advance and take advantage of what has been discovered is is slow tremendously and against public interest but i didn't quite understand what your policy has to do with the  publishes it whether it be private federally funded or not the archiving the keeping over time the curation and making that available to a larger community has always been funded by the public sector to libraries now libraries today because of the new technologies and the fact that we are not dealing with paper but electronic information have developed very powerful tools so the role of the n i used to connect this database which is gone going to be a single standard where we can really look at the content of the article and then as i showed you on the slide connected to all of the other but google can do that no categorical does not do that google refers back to us as i showed you on the slide no outside entity does that for the better you're publishing that peer reviewed scholarly publication one year or in many cases less than one year  the date of publication what are you doing to connect that article to every other arctic ok so every day to our database i mean i would like to brief you on the technologies that we've developed and dr lipman is here was a member of the national  sciences because of the work he's done in understanding that all of the information connectivity it really increases the amount of information that you extract from any one paper just reading the paper is not enough you need to have a concept and if that concept connects is really the next that way beyond the technologies of today where if you did a google search you would have in mind the ideas within the paper and say i want to know everything there is to know about every aspect of that paper if i don't have the publication to start with my source cannot go anywhere but but practically just pushing here to try and explain to me in real terms all right these journals are very expensive but but there is value obviously these journals that is your that is the way this peer you process has been created so you're getting experts analyzing research by other experts and commenting and and letting know whether this is worthy of drawing conclusions about validity from art it's expensive but library subscribe university community subscribe and all this meanwhile time magazine has a medicine section and they get a hold of these articles and they doubt turn it into articles for lay people under fair use which left heather joseph joseph mother know about some new discoveries and medical editors on television news shows and specials i mean there are ways in which this thing gets disseminated which aren't limited to be subscribers to the publication why isn't that system working pretty well it's currently available it's available today i mean you know that many two million articles are available freely after twelve months of publication but the exploitation of that cannot occur unless you have the ability to truly search in the meaning of what is in those articles and then to connect them to the totality of the scientific information without doubt tool all of the downstream exploitation just can't happen right  heather joseph as a mother wanted that information for a very immediate reason heather joseph as a mother and as a taxpayer also wants my doctor to have that information and not only want my doctor to have that information but every scientist working on diabetes research to have information to be able to make new linkages to do what doctors are going to describe as being done in autism i want those genes isolated i want scientists to be able to read the paper go from a paper and think about things they're not thinking about in diabetes research right now i want to enable not just myself to find information at three a m which is very important get me wrong but even more important to me is that my son will have every every available advantage in terms of researchers in the who has a nonprofit company but surely doesn't he want that as much as you want that and if and i ask him that regularly it lists about five to six million articles a year that are published in a catalog in pub med based on the choice of the publishers well the abstracts publishers have made a choice to deposit abstracts the reason why i bring it up is what i created and you saw all the genes that were developed as a result of linkages to the articles that reside in pub med central does not taking into account that there is a ninety percent of the research that is not catalogued within pub med central and as such does not contribute to creating a dynamic in vital database that can enhance science i raise that because it is critically important dr who need dr lipman and others and there are brilliant technology people who can solve a problem that we brought to an eye for many years ago which mr allman has just raised which is a creation of an internal archive the and should have volunteered to preserve the bits and bytes of all our journals all five thousand covered in pub med all five to six million are to could but how does that help the doctor  people would do the same thing they're doing now with the p m c articles they would be able to search all that literature and come up with many of the answers that they do now but on the entirety of literature in the end result is we suggest that doctors  r if it came to an article that was not central or was not available to them they would link out to the journal and the journal would provide access within the framework of their in fargo periods with a modest fee or whatever other arrangements could have been set up that we would have given access to the count content we could have given content access but instead they have tried to do it by taking the peer reviewed manuscripts from those publishers who i think the lessons that we learned from by door very relevant here today was adopted in a recognition of the fact that inventions developed with taxpayer money weren't being commercially exploited because they couldn't be turned over to the private sector the government had no real vested interest in commercializing these wonderful inventions and the money that was invested wasn't serving the public by door allow  ability to innovate they can work cooperatively with the government and with the end in developing a system that's going to serve all parties but to do that they need that basic copyright protection that allows them to make the investments upfront without without getting any immediate reward any compensation for their investment but over the life of the copyright would be able to recoup that investment  in my experience on the legislation involving reform of our panel lies has made the universities operate like they were pharmaceutical companies but  you have i just want to go back to the concept of the dot com that's what it is dark lock box accessible i don't think that's what i did to our car is our solution to the problem never mind i would prefer to call it an internal archive that could be used within the family i don't think it's quite dark thank you very much for coming it's been a very interesting hearing