From: Greg Tananbaum <[log in to unmask]>
Date: Tue, 7 Feb 2012 13:14:39 -0800

In reading through the precise language of the Research Works Act
(found on govtrack.us at
http://www.govtrack.us/congress/billtext.xpd?bill=h112-3699, and
included below), I am particularly struck by how "private-sector
research work" is defined.  The bill states that "private-sector
research work" means "an article intended to be published in a
scholarly or scientific publication, or ANY VERSION OF SUCH AN
ARTICLE… to which a commercial or nonprofit publisher has made or HAS
ENTERED INTO AN ARRANGEMENT to make a value-added contribution,
including peer review or editing [emphasis added]".

This definition would obviously vitiate PubMed Central, which accepts
either the final, published articles or peer-reviewed final
manuscripts (postprints).  However, would it also deter the networked
dissemination of preprints, working papers, manuscript drafts, and
other early versions of the scientific record?  If and when a
publisher enters into an arrangement to peer review that work, one
could reasonably interpret the answer to this question as “yes”.  The
bill states that “No Federal agency may … engage in any policy,
program, or other activity that causes, permits, or authorizes network
dissemination of any private-sector research work without the prior
consent of the publisher of such work.”  Does NASA’s support for the
Astrophysics Data System (ADS) Article Service constitute engaging in
a restricted activity?  What about Brookhaven National Laboratory’s
financial contribution to arXiv?  To the extent that these databases
post materials that may be under review at commercial journals, or
indeed, may have already been refereed and even rejected (per review
constituting “a value-added contribution”) , the government’s support
of these services could be deemed illegal.

I would be curious to hear if others read the language this way.

Best Regards,

Greg Tananbaum
Consulting Services at the Intersection of Technology, Content, & Academia
(510) 295-7504
[log in to unmask]
http://www.scholarnext.com



RWA LANGUAGE:
No Federal agency may adopt, implement, maintain, continue, or
otherwise engage in any policy, program, or other activity that --

(1) causes, permits, or authorizes network dissemination of any
private-sector research work without the prior consent of the
publisher of such work; or

(2) requires that any actual or prospective author, or the employer of
such an actual or prospective author, assent to network dissemination
of a private-sector research work.

In this Act:

(1) AUTHOR- The term ‘author’ means a person who writes a
private-sector research work. Such term does not include an officer or
employee of the United States Government acting in the regular course
of his or her duties.

(2) NETWORK DISSEMINATION- The term ‘network dissemination’ means
distributing, making available, or otherwise offering or disseminating
a private-sector research work through the Internet or by a closed,
limited, or other digital or electronic network or arrangement.

(3) PRIVATE-SECTOR RESEARCH WORK- The term ‘private-sector research
work’ means an article intended to be published in a scholarly or
scientific publication, or any version of such an article, that is not
a work of the United States Government (as defined in section 101 of
title 17, United States Code), describing or interpreting research
funded in whole or in part by a Federal agency and to which a
commercial or nonprofit publisher has made or has entered into an
arrangement to make a value-added contribution, including peer review
or editing. Such term does not include progress reports or raw data
outputs routinely required to be created for and submitted directly to
a funding agency in the course of research.