As COMPETES Act Is Signed into Law, 'Wait-and-See' Is the Attitude on Further OA Legislation

Even after legislating on tax cuts, repealing "Don't Ask, Don't Tell," and coming through on aid to 9/11 first responders, the most recent lame-duck session of Congress found time to take up an issue closely watched by many public access advocates. On January 4, President Obama signed into law the America COMPETES Reauthorization Act (Public Law 111-358), a statute that many have kept an eye on as a possible indicator of legislative receptiveness to broader public access initiatives. However, the bill's adoption may actually have the effect of checking the advance of more progressive open access legislation, at least in the immediate short term.

Aside from assigning funding to agencies like the National Science Foundation (NSF), Department of Energy Office of Science, and the National Institute of Standards and Technology, the act also stipulates the creation of in interagency Public Access Committee that would explore the feasibility of a broader open access mandate, such as that proposed by the Federal Research Public Access Act (FRPAA). Specifically, it would "establish a working group under the National Science and Technology Council with the responsibility to coordinate Federal science agency research and policies related to the dissemination and long-term stewardship of the results of unclassified research, including digital data and peer-reviewed scholarly publications, supported wholly, or in part, by funding from the Federal science agencies."

In terms of defining the research under consideration for public access, the COMPETES Act language somewhat mirrors that of FRPAA, which would govern the research output of any "Federal agency with an annual extramural research expenditure of over $100,000,000."

However, the legislation does not issue any strong statement on the likely benefits of broader public access, and potentially opens the door to influence from opposition parties. "There's still the possibility that COMPETES would take the wind out of the sails of a bill like FRPAA," said open access advocate Peter Suber, who explained that because there's no specific charge pushing for legislation in any one direction, parties on both sides of the debate could leverage the Public Access Committee to their advantage.

Indeed, the Professional and Scholarly Publishing (PSP) division of the Association of American Publishers (AAP) and the DC Principles Coalition for Free Access to Science, which have been strongly critical of the proposed FRPAA mandate [PDF], issued a statement welcoming the legislation. In particular, it applauds the Provision that "also requires that the Committee consider the impact that such policies have had on science and engineering stakeholders, including the financial impact on research budgets."

"We welcome the opportunity to engage with the Administration to advance well-considered policies that do not undermine copyright or propose new government mandates that would result in the duplication of private sector activities," said John Tagler, vp and Executive Director of PSP in the statement.

The bill was initially vetted and approved by the House in May of 2010, then sent to the Senate. For more than six months, no action was taken until it was brought up for debate in the Senate on December 17. The heavily amended bill was then approved and then sent back to the House, where it was passed by vote a of 228-130.

While the committee language of the act remained intact, other portions were significantly revised from the version that had advocates excited earlier this year. For example, in response to criticism from the GOP regarding increased spending and government expansion, funding for the science agencies was reauthorized for three years instead of the five years originally proposed, and provides $40 billion less than the original House version.

Impact on FRPAA
The COMPETES Reauthorization Act doesn't necessarily preclude stronger open access progress on the legislative front, said Heather Joseph, Executive Director of SPARC. "[I]t might mean we don't see an immediate re-introduction of FRPAA (or introduction of other bills) in favor of a 'let's see how the Interagency Working Group progresses' approach, but it by no means kills the medium- to long-term prospects of other legislation advancing."

FRPAA expired with the last Congress, and must now be reintroduced for a third time since it was first put on the table by Senators John Cornyn and Joseph Lieberman in 2006. But aside from any potential fallout from the COMPETES committee, FRPAA also will lose a cosponsor as of 2013, given the recent news of Lieberman's decision not to seek a fifth term in the Senate. The bill has always had bipartisan support, Suber noted, and it likely wouldn't be difficult to find a new non-Republican sponsor.

The bill's prospects for reintroduction may be limited by other concerns, however. "Even though there's Republican support for open access," Suber said, "it might not be among their top priorities in the new Congress. And the same goes for Democrats, who might have to pick their battles more carefully."

Obama executive order?
Another hope lies in a potential executive response. A year ago, the Obama administration collected comment on the potential implementation of a broadened NIH-style mandate that would cover any federal agency with an extramural budget in excess of $100 million. However, after having collected the responses the administration appears to be still digesting the comments and developing a policy response. Though it remains unclear when that might happen, it seems likely that the administration will similarly take a wait-and-see approach at least for the short-term, especially as it gauges its larger political agenda in the wake of a new divided Congress.