As a former congressman, I know that legislation written with good intentions can have unintended consequences. As Congress considers its reauthorization of the America COMPETES Act next week, it should be sure to avoid doing harm to America’s historic partnership between scholarly researchers and publishers of scientific and technical journals to serve the public at large.

Two recently introduced bills, the Fair Access to Science and Technology Research Act (FASTR) and the Public Access to Public Science Act (PAPS) would do just that, undermining this country’s global leadership in scientific publishing. How? Both set arbitrary and ill-considered post-publication embargo periods, between six and twelve months, after which scholarly articles reporting on federally funded research must be given away for free. These embargoes are too short for publishers in many disciplines to recover costs for the substantial investments they make to ensure the wide availability and integrity of articles that report on research. 

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The Association of American Publishers (AAP) represents more than 100 professional and scholarly publishers, many of which are life, physical and social science societies. Prior to publication, our members make significant investments in peer review, article selection, copyediting and revision, manuscript preparation, extensive linking to related research, electronic and print distribution, and ensuring discovery and deposit into long-term archives. To do such work requires revenue, either from subscriptions or another source. 

We believe that the public should be able to search, access, and review journal articles that report on government-funded research, and have worked for many years to advance that goal. Many publishers voluntarily provide free access to their articles after a delay appropriate for their specific discipline, anywhere from three months to five years. However, we cannot support the one-size-fits-all approach proposed in FASTR and PAPS because it undermines our scientific publishing system and prioritizes simplicity over sustainability. Mandating inflexible maximum embargo periods after which articles become available for free globally undermines publishers’ ability to recoup their investments. We know that individuals, corporations and libraries will refrain from subscribing to journals that will become available in a relatively short period of time. 

The bills’ short, inflexible embargoes will damage the financial viability of many scholarly journals and weaken the quality and integrity of the system, including the vital peer review process. The goal should be a reasonable balance between free public access and sufficient incentives to ensure that scholarly journals will continue to exist.

Evidence should trump politics on this issue. A recent study by library science researcher Phil Davis, PhD, found that journals in different disciplines have dramatically different usage patterns. Research in the health sciences is rapidly consumed by others in those fields, but consumption is much slower in mathematics, engineering, social sciences, and the humanities. Journal embargo periods should reflect that difference, and vary based on these disciplinary usage patterns. This approach has been successfully implemented in the UK, where social sciences and the humanities are allowed a 24-month embargo period. We must remember that scholarly articles are available as soon as they are published; the debate is when they should become available to the world for free.

Much scientific literature is published by non-for-profit societies. If public access policies are not carefully designed to fit the unique needs of each discipline, some scientific societies may not survive. That result would rob the scientific community of their other essential services, including career mentoring, specialized seminars and courses, educational resources, recognition programs, and public outreach.

The bills do not advance any real policy goal, as existing law already directs federal agencies to develop public access plans that are based on evidence and best serve individual scholarly communities. Legislation is duplicative and unnecessary. In fact, 14 agencies, including the National Science Foundation, are already implementing plans to advance public access. In contrast to legislation, agency plans provide flexibility to consider stakeholder input and evidence and adjust to future technological change. 

The agencies’ policies provide opportunities for adjustment as scholarly communication changes. Congress should follow its own precedent and allow agencies to use evidence about usage, for example, in setting embargoes to ensure the sustainability of our nation’s scientific journals. Otherwise, quality peer-reviewed edited content may decline because we have undermined the stability of journals, which publishers have successfully stewarded and curated for 350 years.

Allen served in the House from 1997 to 2009. He is the author of Dangerous Convictions: What's Really Wrong with the U.S. Congress.