Open Access given Papal Blessing?

In his latest encyclical letter Pope Benedict XVI argues that rich countries are asserting their intellectual property with "excessive zeal", especially in the field of health care — a statement that has led some to conclude that the Pope has been converted to the Open Access (OA) cause. Whether or not this is the case, is it not perhaps time for the Vatican to reassess the way in which it asserts its own intellectual property (IP)?

Could the Open Access movement have a new convert? On 7^th July, in his third encyclical letter since taking office in 2005, Pope Benedict XVI says that over-enthusiastic exploitation of intellectual property by rich countries is posing problems for developing countries.

Caritas in Veritate (Charity in Truth) is the first of the current Pope's letters to focus on social issues, rather than spiritual matters. And significantly, it was released on the eve of the recent G8 meeting of world leaders at L'Aquila, Italy.

Reminding us that blind pursuit of profit and economic mismanagement has "wreaked havoc" on the global economy, the letter also calls for a reform of the United Nations — with the aim of arriving "at a political, juridical and economic order which can increase and give direction to international cooperation for the development of all peoples in solidarity."

The reference to intellectual property comes in Chapter 2, Paragraph 22, where the Pope says that one of the current impediments to development is the tendency for rich countries to show, "excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care."

Doubtless uppermost in the Pope's mind is an awareness that large Western-based pharmaceutical companies have shown themselves quite prepared to assert their patents aggressively, even when doing so deprives poor people of drugs and treatments that those in the West are able to take for granted.

Knowledge economy

But his point was surely broader than that, and undoubtedly reflects the now widespread concern that in the so-called "knowledge economy" more and more of the raw material driving economic development — information and know-how — tends to be appropriated by the West, which then imposes legal and financial restrictions on its use by means of such things as patents, copyright, trademarks etc.

This appropriation is possible, argue critics, because of the determined way in which the West has set about creating an increasingly maximalist global intellectual property system, which it then forces on the rest of the world through international trade agreements like the General Agreement on Tariffs and Trade (GATT). In particular, The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) — an international agreement administered by the World Trade Organisation (WTO), and negotiated at the end of the Uruguay Round of GATT in 1994 — sets minimum standards for many forms of IP regulation.

Importantly, TRIPS ties copyright and patent policy to a country's other trade. So, as cyber activist Cory Doctorow pointed out to me in 2006, "Failure to accede to the terms of TRIPS, for instance, could mean that a member state's Soya bean and steel exports are limited."

The consequences of this process have become increasingly apparent: Western companies are able to maximise their profits, regardless of the impact on poorer countries, which themselves generally have little or no IP but have to sign up to agreements like TRIPS if they want to be part of the global economy.

Western corporations that own intellectual property argue (with some justification) that if we want to ensure that new knowledge and know-how is created innovators must be incentivised. And the best way of doing this, they add, is for society to provide them with a time-limited monopoly in the exploitation of any newly-created know-how (e.g. by means of a patent).

Locked out

Critics respond by pointing out that most IP ends up in the hands of a few multinational companies, who then use the monopoly it provides to generate disproportionately high profits for private shareholders — by, for instance, significantly overpricing patented products. Since developing countries are unable to afford these prices their citizens are locked out of the benefits.

The Pope has therefore highlighted the social and financial consequences of the current intellectual property system, which unfairly excludes poorer nations from new knowledge and techniques. This not only leaves those countries at a continuing economic disadvantage but, when they are priced out of the latest medical treatments and drugs, deprives them of the ability to improve, or even preserve, the lives of their citizens.

Likewise, poorer nations are frequently denied the benefits of biotechnology, and new methods and techniques to improve agricultural productivity, and thus the ability to provide their people with food security (i.e. the wherewithal to feed them adequately) — a point made to me in 2006 by Biological Open Source advocate Richard Jefferson.

Moreover, the effects of today's IP system are more insidious than they at first appear. Consider, for instance, that while most research is funded by governments, who expect no direct financial return on their investment, this publicly-funded research is nevertheless appropriated by for-profit publishers — who sell it back to the research community in the form of journal subscriptions.

This is an issue that the Open Access movement has been trying to draw the world's attention to for fifteen years now, and is a direct consequence of the fact that when scientists publish their papers in scholarly journals they are told that — as a condition of publication — they must assign copyright to the publisher.

As a result, large Western-based companies like Elsevier, Wiley-Blackwell and Springer acquire this publicly-funded information, and then make huge profits out of it by charging very high subscriptions for scholarly journals — even though in today's online environment most access now takes place electronically, so distribution costs are minimal.

Indeed, journal subscriptions are so high that even the world's richest universities are now struggling to afford all the journals they need to undertake new research. (Bear in mind that most breakthrough research in the sciences comes at the end point of a prolonged iterative process. This means that scientific progress depends upon researchers knowing what research has already been done, and thus having access to all relevant published papers).

But if one considers that an annual subscription to a single journal (e.g. Elsevier's Brain Research) can cost as much as $22,000, and there are today some 24,000 scholarly journals, it is not surprising that scholarly communication is in the grip of a debilitating serials crisis.

For developing nations this means being locked out of much current medical research, leaving local scientists struggling to undertake effective research themselves, and local doctors unable to provide adequate medical treatment for their patients.

Explaining the problem to me last year, OA advocate Leslie Chan pointed out that while researchers at his institution — the University of Toronto — have access to between 2,000 and 3,000 medical journals, an African research institutions like the University of Nairobi School of Medicine will likely have access "to perhaps 30 to 40 medical journals."

In short, today's IP system means that private companies are able to use copyright to capture publicly-funded research, and then restrict access to it in order to maximise their profits. This has led to increasing financial difficulties for research institutions in the West, and near total exclusion from global research efforts for poorer nations.

It was growing awareness of the access problems this gives rise to that led to the creation of the OA movement — which advocates for all publicly-funded research to be made freely available on the Web.

Cycle of deprivation

Was the Pope calling for Open Access in his encyclical letter? Since he didn't mention it specifically we cannot say. Indeed, we don't know that he is even aware of the OA movement.

But the problem that the OA movement seeks to address is one component of the larger problem created by today's IP system, and which the Pope highlighted in his encyclical letter as being an obstacle to, "a political, juridical and economic order" focused on "international cooperation for the development of all peoples in solidarity."

"The point is clear," says Oldenburg-based OA advocate Eberhard Hilf. "OA helps researchers in poorer countries access vital medical information, and provides them with the dignity of being able to undertake their own research, and on an equal footing with scientists in developed countries. And that is both morally and economically good for everyone."

But the cycle of deprivation that today's IP system creates for developing nations does not end there. As Chan pointed out to me, today only 10% of R&D money is spent on diseases that mainly affect the 90% of people who live in the developing world, whereas 90% of the world's R&D money is spent on the 10% of diseases that primarily affect people in the West — a phenomenon Chan calls the 90/10 gap.

This means, for instance, that diseases like malaria and African trypanosomiasis, which primarily affect the developing world, remain neglected diseases. And the reason for this is quite simple: there is little incentive for multinational pharmaceutical companies to develop drugs for patient groups who are unable to pay the high prices these companies expect to be able to charge for patented drugs.

And if they nevertheless do develop drugs for a neglected disease, pharmaceutical companies know that governments in developing nations are now so desperate that they will likely sanction the production of cheap generic versions locally, by means of compulsory licensing — as happened in 2001 when Indian pharmaceutical company Cipla began to produce generic antiretrovirals (AVRs) to treat HIV AIDS.

In short, developing-world diseases offer too little financial return for pharmaceutical companies to attract the attention they deserve. And it is the intellectual property system that provides the framework from which the consequent inequity arises. After all, intellectual property treats non-rival resources (e.g. information and knowledge) as if they were depletable. This creates artificial scarcity — scarcity where it need not exist. What this means in practice is that potential profits for Western companies are prioritised over the basic human needs of people living in poorer nations — e.g. health, food security, and life itself.

For similar reasons, Western journals tend to have little interest in publishing research undertaken in poorer nations (which are likely to be focused on neglected diseases and other developing world concerns), preferring instead to publish research into diseases that affect rich nations — e.g. obesity and cancer; research that will invariably have been done in the West.

Since they cannot afford access to research published in Western journals, and so struggle to do cutting-edge research themselves, researchers in poorer nations are unlikely to have their papers published in prestigious Western journals. This makes it difficult for them to advance their careers, so many talented scientists end up migrating to the West. This in turn creates a brain drain that further exacerbates the problems faced by developing nations.

Indeed, so discriminatory are the effects of today's global intellectual property system that Western companies are even able to capture, and profit from, cultural products and knowledge originating in the developing world — so-called indigenous knowledge. So, for instance, they can appropriate traditional symbols and designs, create derivative arts and crafts, copyright and distribute traditional songs and stories, and patent traditional uses of medicinal plants — a practice known as biopiracy.

As a consequence, cultural products, traditional know-how, and even scientific talent tends to flow to the wealthier parts of the world, draining the developing world of unique locally-developed knowledge and resources, while simultaneously depriving it of life-preserving treatments, drugs and scientific techniques developed in the West.

In response to the larger problem created by the intellectual property system a growing number of other "open" and "free" movements have developed, including the Biological Open Source movement, the Open Source and Free software movements, the Free Culture movement, the Open Data movement, and Creative Commons — to name just few.

Leading by example?

Needless to say, many OA advocates welcomed the Pope's intervention in the debate about intellectual property. But is it enough simply to name the problem? Should the Vatican not also be leading by example? Should it not, for instance, give up some of its accumulated wealth to help tackle the poverty gap? And should it not re-think its own attitude to intellectual property?

After all, the Vatican has substantial wealth: Its revenues in 2007, for instance, were $371.97 million. It also owns a great deal of property, and considerable treasure — as Italian writer Avro Manhattan pointed out in his 1983 book The Vatican Billions.

Unsurprisingly, over the years the Vatican has been exhorted to sell its treasurers to help feed the poor on a number of occasions, most recently this March when Spain's Alberto Juesas Escudero persuaded 40,000 people to sign a Facebook petition calling for exactly that.

As with previous such calls, however, the proposal was rejected by the Vatican. Specifically, President of the Pontifical Council Cor Unum Cardinal Paul Josef Cordes replied that the Church has a duty to conserve the works of art in its possession. In any case, he added, it would be illegal for the Vatican to sell them.

Perhaps the Cardinal's response is fair enough. After all, selling the Vatican's treasures could hardly provide a long-term solution to the problems confronting the developing world.

Nevertheless, if one puts Cardinal Paul Josef Cordes' insistence that the Vatican has a duty to conserve its treasures alongside the Pope's call for rich nations to be less zealous in asserting their intellectual property one is driven to a certain conclusion.

The Vatican owns one of the oldest libraries in the world, the Biblioteca Apostolica Vaticana (BAV), which contains one of the most significant collections of historical texts in the world. BAV's holdings include 1.6 million antique and modern printed volumes specialising in the fields of palaeography, history, art history, classical literature, and philology, as well as 8,300 incunabula (books printed before 1501, of which 65 are printed on vellum), 150,000 manuscript and records volumes, 300,000 coins and medals, and more than 100,000 prints.

This is treasure indeed. And yet BAV is still a private library, and access to it is severely restricted (even undergraduates are not entitled to readers' tickets). Does not a duty to conserve this treasure also imply a duty share it with the world? Certainly BAV's current access policy could hardly be said to be in the spirit of open access.

As it happens, no one has access to the library at the moment, following a decision in 2007 to close it for three years for a programme of renovation and re-building. This is the first time in its 500-year history that the library has been closed, and the decision attracted some criticism from scholars around the world, not least because of the very short notice they were given before closure.

Moreover, while the library is expected to re-open next year, there is no indication that access will be liberalised in any way. This seems a great shame.

In the age of the Internet, of course, access to a library's holdings can be greatly enhanced by providing online access. And today many libraries around the world are busy digitising their holdings with this aim in mind.

Indeed, thanks to the generosity of the Social Investment division of Hewlett Packard (HP), in 2002 the Vatican Library was also able to announce plans to digitise some of its holdings too. The stated aim was "to give millions of people online access to the vast artistic and cultural heritage of the Vatican's Apostolic Library."

The HP press release announcing the project added: "The new part of the Holy See Web site will include images of manuscripts which, until now, have only been accessible to professional scholars and professors."

Seven years later what has been achieved? Browsing the library's web site this is not clear. I was unable to find a single image, although presumably there are some available as there is a reference to them. Perhaps users need to know of their existence and precise whereabouts before they can view them?

Unfortunately my several email enquiries to the library asking for details went unanswered, and some three weeks after contacting HP's PR Company, Edelman, I have yet to be put me in touch with anyone at HP who can enlighten me.

Chilling note

For those who do know what they want, and its exact location within the library, it is at least possible to order images (plus photocopies and CD-ROMs) of holdings remotely, and have them sent to you — assuming that the online ordering system is operating during the library's closure: this too is not clear.

However, in light of the Pope's call for less zealous assertion of intellectual property, BAV's approach to copyright appears somewhat over-proprietary. In addition to having to pay a fee users must sign a copyright form that suggests the library is as zealous as any Western corporation when it comes to asserting its own intellectual property.

Those requesting images, for instance, are told in no uncertain terms, that they must "treat the material as copyrighted by the BAV, and with respect thereto will respect, observe and comply with all national and international laws, rules and regulations with respect to the rights of authors and publishers, with respect to copyright or other intellectual property."

But it is the final sentence of the terms and conditions that strikes a particularly chilling note. Having agreed to use the material exclusively for private study, and keep it "in my personal custody and control at all times" the user is required to agree that, "BAV may, at its discretion, submit any dispute with me arising in relation to this application to any court of competent jurisdiction, including, but not limited to the appropriate judicial authority in the State of Vatican City."

Clearly there is a difference in both scale and scope between providing access to images of ancient manuscripts held in the Vatican library and ensuring that people in developing countries have access to the latest AVRs. Nor does it appear that BAV is any more more vigorous in asserting its IP than other libraries and museums.

But given the Pope's recently stated views on the topic of intellectual property is it not time for the Vatican library to take a more enlightened approach to its own IP. Why not, for instance, make its images available under a Creative Commons licence?

It is of course possible that such plans are already afoot. However, nothing on BAV's web site even hints at this.

Perplexed and alarmed

Back to the question of whether the Pope supports OA: If he were asked the question (and knew what OA was) he would doubtless say he does support it. But if he is genuinely concerned at the way in which rich countries are asserting their intellectual property should the Vatican not be leading from the front?

Unfortunately the possibility of this looks somewhat remote at present. A month after Pope Benedict was elected a decree was issued by the Vatican asserting that copyright in all his works belongs "in perpetuity and worldwide" to the Vatican's publishing house, Libreria Editrice Vaticana, known as LEV.

While the claim outlined in the decree seems a little less eternal today, it nevertheless clearly states that LEV has been assigned "exercise and custody, permanently and throughout the world, of every moral copyright and of all the exclusive financial rights — without any exception — over all the deeds and documents through which the Supreme Pontiff exercises his own Magisterium."

As such, it continues, LEV has full authority, "to initiate legal and judicial proceedings, to propose any action in order to ensure the full protection and realisation of these rights and to resist any claim or request from third parties."

An associated Communiqué also claims retrospective rights in the Pope's writings.

And it seems that LEV has every intention of exercising these rights vigourously. Shortly after the copyright decree, for instance, Italian publishers began to receive letters from the Vatican's legal department demanding copyright fees.

According to CBCNews, for instance, Marco Tosatti, a Vatican correspondent for Turin daily La Stampa, and his Italian publisher, were in 2006 sent an $18,500 bill for publishing Pope Ratzinger's Dictionary, a slim volume of the Pope's thoughts on abortion, freedom, conscience and other issues.

Vittorio Messori, who has co-authored works with both Pope Benedict and John Paul II, was quoted by the London Times as saying that he was, "perplexed and alarmed" at this turn of events. It was, he said, "wholly negative and absolutely disastrous for the Vatican's image."

A pope's words, Messori added, should be available to all free of charge, and to "cash in in this way surrounds the clergy with the odour of money".

A Vatican spokesman told the Times that the Holy See had to defend itself against "pirated editions". He added that the move was also aimed at preventing "premature publication", as the Vatican often released text to journalists under embargo, and did not want that text published before the embargo period ended.

Perhaps the Vatican is asserting its copyright less aggressively today. There is, however, no evidence to suggest that it is.

Certainly its actions of three years ago were not in the spirit of open access. As OA advocate Peter Suber commented at the time: "Not only is the Vatican abandoning free access and distribution for papal documents. It's abandoning any equivalent of 'fair use' and it's doing all this retroactively as well as prospectively. It's hard to believe that the Vatican will gain more than it loses from this. I predict not only ridicule and dissent, which have already started, but litigation and a huge increase in pirated editions — roughly in the way that a prohibition on flag burning would stimulate flag burning. And does the Vatican really need money more than impact?"

The problem the Vatican faces, of course, is that (as Suber implied) in the age of the Internet it is very hard to prevent copyright infringement. The BAV's 2002-2003 annual report acknowledged as much (in a section entitled Copyright and Property Rights): "No news on this front, the problems are still the same, and have to deal with individuals who still seem not accept the property rights of the images and most of all with Institutions: publishers, universities, libraries, etc. not always respecting the law in force."

The fact is that unless a copyright owner is prepared to be as ruthless as the Recording Industry Association of America (RIAA) in suing people there appears to be little that can be done to prevent copyright infringement in a digital environment. And the Vatican would surely not want to go down that road.

All in all, perhaps it is time for the Vatican to embrace the more liberal access approaches advocated by the OA and Creative Commons movements.

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Open Access: Rethinking Harvard

Last week the architect of Harvard’s Open Access (OA) policy, Stuart Shieber stated: “the Harvard open-access policy could not be, should not be, and is not a mandate.” What are the implications of this for the OA movement in the US?

When in February 2008 it was announced that Harvard University’s Faculty of Arts and Sciences (FAS) had voted unanimously for a resolution to introduce an OA policy Library Journal called it “a shot heard ‘round the academic world.”

Viewed by nearly everyone as the resolution that saw the first Open Access mandate introduced in a US university, the FAS proposal called for all researchers to provide Harvard with “permission to make available his or her scholarly articles and to exercise the copyright in those articles”, and to “provide an electronic copy of the final version of the article at no charge [in order that] the Provost’s Office may make the article available to the public in an open-access repository.”

Since its aim was to ensure that all faculty papers were made freely available on the Internet, the policy was widely hailed as an “historic measure”.  Importantly, it seemed to be exactly the kind of policy that the OA movement had long been calling on universities to introduce.

And while it was not the first such university-level policy in the world, OA advocate Peter Suber pointed out, it was nevertheless “the first in the US, the first to be adopted by faculty rather than administrators, the first adopted policy to focus on permissions rather than deposits, and the first to catch the worldwide attention of the press and blogosphere.”

Certainly the fact that a faculty in a university as prestigious as Harvard had taken such a step was viewed as highly significant, and the news was immediately held to be a major breakthrough for the OA movement. It was also assumed that the policy would be widely emulated by others.

And indeed FAS’ OA policy has proved highly influential. Not only have three further such resolutions emerged from Harvard itself (and a fifth appears to be in the works), but similar resolutions have been successfully passed at Stanford School of Education, at MIT, and at a growing number of other US universities, as well as at universities around the world, including University College in London.

As evidence of its significance, OA advocate Stevan Harnad pointed out to Nature recently that the number of OA policies introduced since the Harvard resolution was passed has “almost doubled globally.” 

Not what it appears?

But what has generally been glossed over, or entirely ignored, is the fact that the Harvard policy is non-binding: So far as giving Harvard permission to distribute their papers is concerned, for instance, any FAS researcher can request a waiver, and be confident that the request will be granted automatically. Moreover, there is no requirement on faculty to deposit papers in the repository, although they are encouraged to do so.

In short, the Harvard policy is not what it appears, or at least it is not what it is represented as. Despite frequent claims to the contrary, for instance, Harvard does not have an OA mandate. After all, if any FAS researcher can obtain an automatic waiver, and there is no requirement to deposit, there is no sense in which the policy could be described as compulsory, and thus mandatory.

This truth was conceded last week by the architect of the Harvard policy, Stuart Shieber. As he put it on his blog The Occasional Pamphlet, “the Harvard open-access policy could not be, should not be, and is not a mandate. I’ve tried to be very careful never to refer to it as a mandate (though I can’t promise I’ve never slipped up).”

Others have surely slipped up: A  press release put out by Harvard last May announcing that the Law Faculty had subsequently also voted for an OA policy, for instance, described it unequivocally as a mandate.

Why is the Harvard policy not mandatory? Because, explains Shieber on his blog, when push comes to shove no one can compel faculty to do anything they don’t want to. “As any dean will tell you, there is no such thing as a mandate on faculty. One could stipulate a policy that all faculty must wear crimson at monthly faculty meetings; the only result would be benign neglect of the requirement by most faculty and assiduous wearing of blue by a small group interested in tweaking the administration. Trust me.”

Does it matter whether an OA policy is technically a mandate? Harnad suggests not: The word mandate, he says, “means both to ‘legislate’ and to ‘legitimize’.”

Presumably Harnad would therefore argue that the Harvard policy is indeed a mandate.

Even if it does include a waiver, Harnad suggests, by legitimising self-archiving the Harvard policy will encourage faculty to do something that until now they have assiduously chosen not to do.

In other words, it doesn’t matter whether it’s called an OA policy or a mandate – so long as it persuades researchers to make their work freely available.

Fudging

But is there not a danger of fudging the issue here? While I make no claims to be a lexicographer, no definition of the word mandate I can find suggests that it also means to legitimise. Rather, the consensus seems to be that, in the words of the Merriam–Webster dictionary, a mandate is, “an authoritative command; especially: a formal order from a superior court or official to an inferior one.”

And if one goes back to the Latin root of the word (courtesy of Perseus’ digital version of the canonical Latin Dictionary at Tufts University), one finds that the verb mando means “to commit to one's charge, to enjoin, commission, order, command.”

Of course one can always argue about the meaning of words, and I don’t meant to be overly pedantic. But this isn’t only a question of semantics. In calling for mandates OA advocates have always assumed (or certainly implied) that self-archiving would need to be made compulsory, not simply legitimised.

And they did so for a good reason: mandates are necessary, they rightly argued, because researchers won’t self-archive voluntarily, however legitimate they believe it might be to do so.

As Harnad frequently puts it, “surveys show that only 15% of authors will self-archive unless it is mandated. Just requesting or recommending deposit does not work. Deposit analyses comparing mandated and unmandated self-archiving rates have shown that mandates (and only mandates) work, with self-archiving approaching 100% of annual institutional research output within a few years. Without a mandate, IR content just hovers for years at the spontaneous 15% self-archiving rate.”

Carrots and sticks

This is not just supposition, as Harnad points out. There is hard evidence to support the claim that non-mandatory policies are invariably unsuccessful. We know, for instance, that for so long as the NIH Public Access Policy remained a request compliance levels were derisory.

When the policy was upgraded to a requirement, however, deposits immediately began to grow rapidly. As an NIH spokesperson put it to me recently, since the policy became mandatory, “Compliance has increased almost 250% ... It has jumped from 19% of our target estimate 80,000 papers per year arising from NIH funds during the voluntary policy to almost half (49%) of the target estimate of papers arising from NIH funds at the end of 2008.”

That said, while Harvard’s policy is not a mandate it has at least shifted the emphasis from opt-in to opt-out. The question is, will this be sufficient to ensure greater compliance than a voluntary policy? If so, how much greater?

Of course, the proof of the pudding will be in the eating, so perhaps we shouldn’t prejudge the matter. For now we don’t know what level of compliance the Harvard policy might achieve. And since – nearly eighteen months after Harvard’s OA policy was agreed – its repository has yet to be made publicly available we have no idea how many papers are currently being deposited.

So far as Shieber is concerned, however, Harvard’s policy is the best that can be hoped for at the university level. “I am not claiming that there can be no true open-access mandates on faculty,” he says. “Rather, such mandates must come from outside academia. Funders and governments can mandate open access because they can, in the end, refuse to fund noncompliers. They have a stick. All a university, school, or dean has, in the end, is a carrot.”

The trouble is that if it is not possible to impose mandates at university level in the US the OA movement faces a worrying obstacle. It is also confronted with an awkward question: As Harvard-style policies propagate across North America might the movement discover that its boat has developed a leak under the waterline?

All in all, for the moment OA advocates in the US might be better to focus their energies on persuading research funders and the US government to impose mandates, and not allow themselves to be distracted by the string of announcements coming out of universities, some of which are undoubtedly more hot air than substance.

For this reason initiatives like the recently re-introduced Federal Research Public Access Act (FRPAA) are doubtless of much greater potential significance.

If successful, the FRPAA would require all US agencies with research budgets of $100 million or more to ensure that the output of any research they fund is made freely available within six months of publication. And we can be confident that the FRPAA will arm these agencies with a stick, not a carrot.

Certainly anyone who believes that university-level OA policies are on the verge of sparking a revolution in the US might need to rethink the matter. And in the process, they may have to conclude that the current poster child of the OA movement is not all it claims to be.

On the other hand, Harvard might yet surprise us all!

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Open Access and the A-Bomb

Many have wondered why the first scientists to embrace Open Access (OA) were physicists.

That physicists were the OA trailblazers is not in doubt: it was, after all, theoretical physicist Paul Ginsparg who in 1991 created the seminal physics preprint repository arXiv; and today physicists as a matter of course deposit their preprints in arXiv before sending them to a publisher.

This has seen arXiv grow to the point where it currently hosts over half a million papers, with roughly five thousand new ones being added each month.

Importantly, by putting their papers into arXiv physicists ensure that they are freely available to anyone who wishes to access them – assuming they have an Internet connection – regardless of whether they or their institution has a subscription to the journal in which the paper is published. Indeed, some papers in arXiv are never published in a journal at all.

Economists and computer scientists aside perhaps, no other discipline can claim to have embraced OA as enthusiastically as physicists.

But why?

Long before the Internet

Maybe because physicists have been sharing paper preprints with one another for decades? OA advocate Eberhard Hilf tells me that this began as long ago as 1932, when the Italian Nobel Laureate Enrico Fermi started to routinely mail preprints of his papers to colleagues prior to publishing them.

Fermi is noted for his work on the development of the first nuclear reactor, and for his contributions to the development of quantum theory, nuclear and particle physics, and statistical mechanics.

In this light, arXiv was simply a digital manifestation of a practice that began long before the Internet.

On the other hand, as Annette Holtkamp – an information professional at Germany's largest particle physics research centre DESY – pointed out to me last year when I interviewed her, the preprint culture is principally a habit of particle physicists.

Photon scientists, for example, still rely entirely on journals, she told me; and even some within the particle physics community – e.g. accelerator physicists – remain much more dependent on conference proceedings.

But why particle physicists?

If asked the question, particle physicists will usually say that their field is too fast-moving for them to want to wait for a paper to go through the lengthy process of being published in a journal before sharing it with colleagues.

The world's first mandate?

Holtkamp offers a different explanation. Particle physicists, she told me, are “a small closely-knit community and the authors and readers are practically identical. The community has also always been part of a very international enterprise, and worldwide collaboration has long been the norm. This has meant that the rapid long-distance exchange of information has always been crucial — something that is not as important in many other disciplines, which becomes obvious when you compare citation histories of typical papers in different disciplines.”

That makes sense. But recently I have begun to wonder if there could be an additional reason.

A couple of weeks ago, for instance, I had an email conversation with Jens Vigen head of the Scientific Information Service at the world's largest particle physics laboratory CERN, as a result of which Vigen sent me a copy of a memo dated 17th March 1955 and signed by the then Director General of CERN. The memo instructed CERN employers to send copies of all the technical papers they wrote to the library, with a view to making them publicly accessible.

I asked Vigen if he thought the memo could be classified as the world’s first OA mandate. He replied, “It’s hard to say. I guess at the time no universities would have had such mandates in place (I think it would have been considered a threat to their academic freedom), but there could be other labs that would have similar things in place.What about Los Alamos?”

Declassification

So I emailed Miriam Blake head of the library at the Los Alamos National Laboratory (LANL).

Based in New Mexico, LANL was one of the secret laboratories and production sites that jointly developed the atomic bomb during World War II – as part of what was known as the Manhattan Project.

Blake was kind enough to ask one of her colleagues – LANL librarian Michelle Garcia – to see if she could find any reference to an OA mandate in the Los Alamos archives. Blake cautioned me however. “With the history of Los Alamos, I suspect it may be less lucid than the CERN directive. But obviously at some point scientists here began to openly publish.”

A few days later I had an email from Garcia. There was no mention of a mandate in her message, but she did send me something of greater inherent interest: a link to the 1945 Smyth Report.

The Smyth Report, Garcia explained, is “the earliest example of any kind of acknowledgement on the need for public release of information specifically on the development of atomic energy by the US government. Following the Smyth Report, there was a declassification program headed by a committee of senior scientists that led the Manhattan Project, which came up with the declassification guidelines in 1946.”

Sufficient information

Essentially the Smyth Report is an official account of the development of the atomic bomb in the US. Its stated aim was to give US citizens sufficient information to enable them to understand enough about atomic weapons to make sensible policy decisions about their use, and the use of the technology underlying them.

As the preface to the Report puts it, “The ultimate responsibility for our nation’s policy rests on its citizens and they can discharge such responsibilities wisely only if they are informed.”

One could perhaps argue that the Smyth Report was an acknowledgement of what in today’s OA parlance might be referred to as “Taxpayer Access”.

As the US-based Alliance for Taxpayer Access (ATA), puts it, for instance: “American taxpayers are entitled to open access on the Internet to the peer-reviewed scientific articles on research funded by the US Government.”

On the other hand, as we have seen, the Smyth Report stressed that scientific information should be released to the public not because its creation had been funded by taxpayers, but because it would enable them to make informed decisions about how the science should be used.

The Preface to the Smyth Report did however acknowledge: “The average citizen cannot be expected to understand clearly how an atomic bomb is constructed or how it works but there is in this country a substantial group of engineers and scientists who can understand such things and can explain the potentialities of atomic bombs to their fellow citizens.”

We should note that the Report was released to the public on August 12th 1945 – just days after the atomic bombs were dropped on Hiroshima and Nagasaki (August 6th and 9th).

Did the public want to be informed on the topic? It certainly seems so: Wikipedia reports that when it was published as a book the Smyth Report sold 127,000 copies in its first eight printings and was on the New York Times best-seller list from mid-October 1945 until late January 1946.”

At the time, some US politicians complained that the Report had “given away the secret of the A-bomb”.

Since then the Smyth Report has been translated into 40 different languages.

Furthering the national welfare

There was, however, a further argument used to justify the release of the information in the Smyth Report. This too is interesting in the context of OA.

In an article published in the November 1946 issue of Bulletin of the Atomic Scientists (Pages 14/15), for instance, Lt. Col. Hutchinson explained how an army officer had described the value of the declassification process in the following way:

This war was won by teamwork and the two and one-half ton six wheel drive. This makes the cargo truck a military weapon. Suppose that after World War I the government had declared that all future research directed toward improving cargo trucks was to be conducted in strictest secrecy. If this had been done, maybe we wouldn’t have had such a good cargo truck by the time World War II came around. In science the more contributors there are, the more progress will be made. We can’t release everything concerning the atomic bomb, but we can release a lot of valuable information that will help American science to advance from here, particularly in applying wartime developments to peacetime use.

Hutchinson concluded: “Thus the Manhattan Project is furthering the national welfare by releasing scientific information where this can be done without danger to the national security.”

This argument would doubtless be endorsed by OA advocates like Stevan Harnad, who insist that the only valid reason for making research OA is that doing so will allow scientists to maximise the impact of their work.

This view says that OA has nothing to do with providing the public with access to scientific information, but other scientists – so that they can build on one another’s work, to the benefit of themselves, to the wider research community, and to the world at large.

Default position

Back to the question of why physicists were the first to embrace OA: Could it be that the US atomic weapons declassification program helped create the preprint culture characteristic of the particle physics community?

In other words, in being asked to think through the reasons for and against making their research freely available, could it be that physicists became acculturated into assuming that the default position should be one in which scientific information is made as widely available as possible, as soon as possible – on the assumption that in most cases the benefits far outweigh the disadvantages?

Far fetched? Maybe. But it reminds us that we are entering a world in which it will be expected that more and more information will be freely available – be it scientific research, or be it the details of British MPs' expenses – unless someone can give a damned good reason why it shouldn’t be.

Of course the tragedy is that in the wake of the declassification program a growing amount of the world’s research was nevertheless to become inaccessible to a growing number of people – for a very different reason.

That is, the subscription costs that have to be paid to buy access to scholarly journals have constantly risen, to the point where today even the world’s richest universities are struggling to afford them, depriving both scientists and the public of access to more and more of the research corpus.

This of course is not a consequence of government restrictions, but of the financial restrictions arising from scholarly publishers seeking to maximise their revenues. It was partly in an attempt to find a solution to this problem, of course, that the OA movement emerged.

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Gold OA Funds

I am trying to establish how many research institutions and funders have created Gold Open Access (Gold OA) authors funds, and would be grateful for input from others.

I am aware that the Wellcome Trust announced a scheme for paying OA publication fees for its grantees in 2006. But what other funders have introduced such schemes?

So far as research institutions are concerned, Peter Suber kindly provided me with the following list of those he knows have created Gold OA funds:

University of Amsterdam
University of Calgary
University of California, Berkeley
Delft University of Technology
ETH Zurich
Griffith University
University of Helsinki
Institute of Social Studies (Netherlands)
Lund University
University of North Carolina, Chapel Hill
University of Nottingham
University of Tennessee, Knoxville
Texas A&M University
Tilburg University
Wageningen University and Research Center
University of Wisconsin

However, I do not think this list is complete. I understand, for instance, that the University of Oregon has also created a Gold OA fund.

There are also some universities currently considering creating Gold funds including, I am told, both Cornell University and University College London (UCL).

In the light of current discussion on AmSci, it might also be useful to know how many research institutions have both set up a Gold OA fund and introduced a Green self-archiving mandate.

After reviewing the list above Stevan Harnad suggested that only two (ETH Zurich and the University of Helsinki) of the 85 research institutions that have introduced a Green OA mandate have also created Gold funds, although if we add the University of Oregon the figure would be three; and if UCL created a fund it would be four.

We should also note that in addition to paying Gold OA fees for its grantees the Wellcome Trust has a Green mandate.

But are there any other research institutions or funders with Gold OA funds that are not listed above? Might an equivalent to ROARMAP (which tracks Green mandates) be a useful way of tracking the introduction of Gold funds?

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The world’s first Open Access Mandate?

In the process of writing something about the current state of Open Access (OA) mandates I became intrigued by the mandate introduced at Geneva-based particle physics laboratory CERN.

Officially, CERN introduced a self-archiving mandate in November 2003. Amongst other things, this requires CERN researchers to “deposit a copy of all their published articles in an open access repository”.

This suggests that CERN’s mandate came some ten months after the world’s first mandate – introduced in the department of Electronics and Computer Science (ECS) at the UK’s University of Southampton in January 2003.

When I began enquiring about the genesis of the CERN mandate, however, the picture began to seem less clear. I found it hard, for instance, to establish why CERN had introduced its mandate, and who had been responsible for pushing it through.

Amongst those I contacted for enlightenment was scholarly publishing consultant Alma Swan, who said her understanding was that there had always been a mandate at CERN. Originally this was an analogue mandate, with researchers expected to provide the library at CERN with print copies of all the papers they published, but that this was subsequently upgraded to a digital mandate (in November 2003).

Alma kindly emailed the head of the Scientific Information Service at CERN Jens Vigen for clarification. Vigen also found the question intriguing and began digging around in CERN's archives; and today he emailed me a copy of the original memo from CERN's Director General – officially known as CERN/DG/Memo/5, and dated 17th March 1955.

Vigen commented, “Times have obviously changed since then and I must admit I was smiling quite a lot while reading it. However, the mandate for deposit was, as you see, in place from the very first days of the organisation's life.”

Images of the two-page memo are attached below, and can be accessed as a PDF file here.

This still leaves me with a number of questions however:

1. Is it fair to call the CERN memo an OA mandate given, for instance, that the term OA was only coined in 2001, at the Budapest Open Access Initiative (BOAI)?

2. Similarly what do we make of the fact that the policy was combined with one on press statements? Could it be that this was not intended to refer to scholarly papers?

3. If it can be classifed as an OA mandate, is it truly the world's first, or is there another dusty memo out there somewhere predating 17th March 1955?

4. If it is an OA mandate, why was it introduced at CERN at such an early date?

5. What was the process by which CERN’s analogue mandate was upgraded to a digital mandate. Specifically, who was responsible, and why was it upgraded?

All comments and further information gratefully received.

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Open Access mandates: Judging success

As Alma Swan has graphically demonstrated (here and here), mandates have begun to propagate nicely.

It is worth noting that many of the new ones are being introduced by faculty themselves, rather than by administrators imposing mandates on them from above. It is also noteworthy that many of the mandates in the recent upsurge have been introduced by library faculties.

But what level of compliance can we expect from these mandates? After all, a mandate is only as good as the compliance rate it achieves. And how do we judge success so far as compliance is concerned anyway?

Arthur Sale’s analyses of the effect of mandates on Australian researchers suggest that a high level of compliance with a mandate can be achieved within two years. (Sale appears to have judged success as being a compliance rate of 70%)

Perhaps the most controversial and hard-won mandate was the one introduced at the US National Institutes of Health (NIH) in May 2005. Initially this was a request.

By November 2005 it was reported that fewer than 5% of NIH grantees were complying with the request. As a result, last year the mandate was upgraded to a requirement.

The new policy came into effect in April 2008. Since then, an NIH spokesperson tells me, “Compliance has increased almost 250% ... It has jumped from 19% of our target estimate 80,000 papers per year arising from NIH funds during the voluntary policy to almost half (49%) of the target estimate of papers arising from NIH funds at the end of 2008.”

And compliance, he added, continues to improve. “In January and February 2009 we collected over 3 times as many manuscripts as we did in January and February 2008, before the requirement took effect, and March and April numbers appear even higher.”

A similar increase in deposits has been experienced at the University of Stirling following the introduction of a mandatory self-archiving policy by its Academic Council last year (which came into force last September).

Last week it was announced that deposit rates in the University’s repository (STORRE) have grown from 20 a month to 120 a month, and STORRE now hosts 1,000 papers, reports and book chapters.

Commenting on the JISC-REPOSITORIES mailing list, the University of Stirling’s eLearning Developer Michael White said, “Whilst we are aware that we don't yet have 100% compliance with our mandate, the key point is that we only managed to get 63 journal articles over the 3 years prior to the announcement of the mandate, but have got 687 items (excluding eTheses) in the year since (with the vast majority coming in after the mandate came into force in September).”

A number of questions naturally arise:

— Can we expect the NIH compliance rate to match the levels reported by Sale in Australia by next April (i.e. two years after it became mandatory)?

— Can we expect the surge of new mandates to achieve the same levels of compliance reported by Sale?

—  Is there any significance in the fact that many of the new mandates are being introduced by library faculties, and can we expect that to affect compliance rates?

— Will the fact that many of the new mandates are self-imposed affect compliance rates? (Will it make them appear more voluntary than mandatory)?

— Will the fact that many of the new mandates include opt-outs affect compliance rates? (Will that make them appear more voluntary than mandatory?)

— What is full compliance so far as a self-archiving mandate is concerned? (Is Sale’s 70% level the objective, or should the research community be aiming higher?)

What other questions should we be asking, particularly when trying to judge the success of a mandate?

All comments welcome!

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Intellectual Property, Open Access, and the Developing World

The conventional view is that intellectual property is a “bad thing” for the developing world, since it primarily (if not exclusively) benefits the developed world, often at the expense of the developing world.

The conventional view is that the developing world has more (or at least as much) to gain from Open Access as has the developed world.

Recently I was contacted by Kay Chapman from the Central Advisory Service on Intellectual Property (CAS-IP) — the IP advisory group to the Consultative Group on International Agricultural Research (CGIAR).

The mission of CGIAR is “to achieve sustainable food security and reduce poverty in developing countries through scientific research and research-related activities in the fields of agriculture, forestry, fisheries, policy, and environment.”

So I asked Kay if she could write something outlining the main challenges that IP poses for the developing world, and what is being done about it. She agreed and — with her colleagues Dr Victoria Henson-Apollonio and Sebastian Derwisch — produced the text below.

On reading it I was reminded once again that the world is always more complicated than we think.

Some IP challenges in the developing world; and what is being done.

The business of the CGIAR’s, Central Advisory Service on Intellectual Property (CAS-IP), is to assist with effective IP & technology transfer management within the context of agricultural development, to benefit the world’s poor.

One of the challenges we face on a regular basis is explaining to people what we do and how it matters for small-holder, resource-poor farmers. And this is symptomatic of intellectual property (IP) management in the developing world. There are no easy answers.

Dr Victoria Henson-Apollonio

If we think of IP issues in terms of “formal” and “informal” IP, then under the “formal IP” category falls patents — patent rights, trademarks, geographic indications, copyrights; the more characterized and thus ‘tangible’ balance-sheet-assets.

“Informal” IP management of intellectual assets takes place through contracts and agreements, deals with attribution rather than inventorship or creatorship, and includes the notions of stewardship and branding.

It’s this kind of “informal IP” pragmatic management we see most often associated with dissemination and uptake of agricultural research in developing countries. Contracts and agreements provide the main instrument to transfer, licence and manage ones intellectual assets/IP.

Softer skills

Of course you have the issue of contract enforcement if something goes wrong. But more often than not enforcement isn’t a primary consideration. Rather the softer skills needed for “coming to agreement” and the role of drafting agreements, in the world of partnerships is where most energies are directed.

If your organisation is transferring materials (and with it institutional IP), an effective agreement clearly outlining roles, responsibilities and consequences goes a long way to preventing misappropriation or breeches of rights.

However, no contract will take the place of trust among partners. Trust and a willingness to work together through a project are the foundation for successful collaboration. Whilst agreements may, at first glance, fall short of the kind of protection one might associate with a patent — it is undoubtedly more effective in many situations where formal IP protection is neither understood nor enforceable.

Access to correct and appropriate information is an ongoing challenge. Capacity to communicate, providing access to knowledge, networking, sharing of experiences, building capacity and access to professional advice and experience all play a role.

Many of our partners in developing countries are struggling to raise awareness as to why IP management is important and how IP management forms part of the bridge between researchers and users.

Having a network of knowledgeable professionals available for support and advice on how to implement effective IP management strategies in a developing country environment is invaluable.

We have also discovered that our National Partner Initiative (NPI) really helps all of us become more sophisticated in our thinking and our practice. For example, we are just beginning to tap market segmentation tools and branding as ways to distribute dependable quality products to resource-poor farmers.

Kay Chapman

Open Access

When thinking about access in terms of Open Access specifically it should be noted that articles from some ‘big-name’ journals — such as the US Proceedings of the National Academy of Sciences (PNAS), can be read and downloaded from servers in developing countries for free.

This is a policy that could be encouraged more widely to address part of the problem for access in developing countries — but that, and indeed OA from large publishers in general, doesn’t fix the problem.

Journals from the developed world tend to deal with IP issues from the developed world. Unfortunately where communications infrastructure is weak, even Green OA can be problematic and here the informal IP management elements play a role — how can we transfer the skills necessary for ensuring successful data sharing in a particular project!

But this isn’t going far enough when considering how to tackle IP management challenges in developing countries. We need to be active as well as reactive to the IP issues. One cannot segregate IP as a problem in itself; IP mechanisms that are, for the most part–business tools.

In agriculture there is a vast array of challenges; crop production challenges, marketing challenges, farmers’ adoption and adaption challenges — and within all of these challenges IP likely has a role, and that IP management might take many forms.

Each of these challenges has a distinct context, from region to region, country to country, crop to crop. And this is just to identify the challenges before we look at doing something about it…

System Dynamic Modelling

In order to unravel the interlocking and interdependent factors in the role of IP management, both formal and informal IP, legal systems, trade issues, behavioural issues, CAS-IP has decided to employ a scientific technique called System Dynamic Modelling (SDM) to try to understand how these various pieces relate and fit together.

Sebastian Derwisch

This modelling can then form the basis for trying to ask broader questions such as “what can be done to improve IP management in a development context?”

To see some of our preliminary work in this area, please visit this post we made on this subject: The method of SDM can help by mapping out the relational factors in a system, zooming into the IP issues within a specific context and simulating how changes such as seed laws might affect that context. Our modelling research team is looking at innovation systems and the seed value chain.

It is a chain of activities in which R&D leads to production of new germplasm, to production of seed, to farmers adopting new varieties and so on. If we have a situation in which quality seed delivery can be guaranteed by linking the distribution to a trademark, with or without a seed dealer network, what will this likely mean on farmers’ ability to utilize the genetics in the new material?

By mapping these chains and the influences we can ask questions such as “how does farmers’ adoption affect R&D of new seed varieties and vice-verse”

Range of tools

IP is just one of a variety of tools for improving the processes our stakeholders are dealing with. For example there could be participatory methods that are being used; there are other types of extension models such as farmer-field schools, demonstration plots, identifying people for ‘first-adopter’ schemes, etc. to increase uptake and use of new materials.

IP is often looked at as a deterrent to wide distribution; patents are seen as a means to ‘tie things up’. However, in the developing country context, such a simplistic statement rarely reflects the situation.

We have found that it is better to step back from the bias that may exist and instead to look at all of the options, the context, and the facts of the situation — as much as possible, in order to try to help researchers and farmers interact.

For example, patents are rarely a problem – importation of patented crops, grown elsewhere, into the US is a rare example. Most poor farmers just don’t have the wherewithal to grow export crops; we wish we had that problem!

About CAS

The CAS mission is to assist the Alliance Centres of the CGIAR, their partners and the CGIAR system as a whole in a comprehensive approach to management of Centre intellectual assets as public goods. To that end it contributes legal information to the CGIAR that benefits subsistence farmers in developing countries.

The overall goal/vision of CAS-IP is to enable access and use of CGIAR products for the benefit of the poor through effective IP and technology transfer management.

For more information on the Consultative Group on International Agriculture (CGIAR) click here. A short film about CAS-IP can be accessed here. The CAS blog can be accessed here.

CAS can be contacted here.

The authors

Dr Victoria Henson-Apollonio has been a senior scientist and manager at CAS-IP since its creation in 2000. She has many years practical experience as a patent agent and as a technology transfer (TT) and patent specialist at the Argonne National Laboratory, and as a tenured member of the faculty of the Department of Biology at Purdue University, USA.

Sebastian Derwisch holds both a Bachelor of Forestry and a Master of Tropical and International Forestry from the University of Göttingen in Germany. The main focus of his work has been Humanitarian Use exemptions and the use of Traditional Knowledge in the CGIAR. His current focus is on the development of a System Dynamics model for agricultural innovation in developing countries.

Kay Chapman, who joined CAS-IP in 2005, has over 10 years experience as a marketing communications manager. She is a business graduate and holds a postgraduate diploma in marketing from the UK’s Chartered Institute of Marketing.

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