What do you see as the strengths and weaknesses of each criterion?

The current Broader Impacts merit review criterion includes the consideration, “Will the results be disseminated broadly to enhance scientific and technological understanding?” NSF should retain and strengthen this consideration of the merit review.

Broad dissemination must be a high priority for NSF-funded research. As a federal agency operating with taxpayer funding, NSF has a responsibility to maximize return on investment by removing barriers to access for the scientific community, as well as to ensure access for taxpayers. In addition, broad and equitable dissemination of scientific information advances the goals of the Universal Declaration of Human Rights, which affirms that “everyone has the right freely to … share in scientific advancement and its benefits,” and the International Covenant on Economic, Social and Cultural Rights, in which governments agree to take the steps “necessary for the conservation, the development and the diffusion of science;” the United States is a signatory to both documents.

Under the current criteria, which are more than a decade old, proposals may be inadequately reviewed with regard to the dissemination consideration. During that time, the landscape of scholarly publishing and information has undergone significant changes. In particular, the exceptional opportunities created by the Internet behoove NSF to ensure that its funded research takes full advantage of the new technology to maximize cost-effective dissemination.

At present, broad dissemination of results is promoted through two avenues at NSF: the merit review criteria, which investigators must address in their proposals, and the Award and Administration Guide (AAG), which governs projects after an award is issued. This dual approach is beneficial and should be maintained and strengthened.

NSF establishes minimum requirements for dissemination in Chapter VI.D.4 of the AAG. In particular:

• “Investigators are expected to promptly prepare and submit for publication … all significant findings from work conducted under NSF grants;” and
• “Investigators are expected to share with other researchers, at no more than incremental cost and within a reasonable time, the primary data, samples, physical collections and other supporting materials created or gathered in the course of work under NSF grants.”

This policy is underpinned by Sec. 7011 of the America COMPETES Act of 2007, which requires NSF to enforce the standards by making any researcher who fails to comply ineligible for future funding.

Additionally, Sec. 7010 of the 2007 COMPETES Act requires NSF to make project reports freely available to the public online, along with citations to any publications resulting from NSF funding. This provision of the law is implemented by Chapter II.E.3 of the AAG, which requires grantees to submit a report describing the project outcomes, written specifically for the public, to be made freely available via Research.gov.

In addition to the baseline standards of the AAG, investigators are required to address the dissemination consideration of the Broader Impacts merit review criterion. This dual approach is beneficial because it encourages creative approaches to dissemination beyond the minimum, as appropriate to the proposed activity. Moreover, by including dissemination in the merit review criteria rather than only in post-award requirements, NSF ensures that investigators plan for dissemination beginning from the proposal stage, a valuable way to keep dissemination in mind throughout the project’s life cycle.

Unfortunately, both aspects of this approach currently are insufficient. Both the dissemination requirements of the AAG and the dissemination consideration of the Broader Impacts criterion should be updated and strengthened.

While NSF is to be recognized for its leadership in recently requiring investigators to develop data management plans, in other regards the AAG is outdated and should be reformed. Most importantly, NSF has not implemented a requirement that its funded investigators provide public access to resulting peer-reviewed manuscripts, rather than merely the citations to those publications. Among federal science agencies, the National Institutes of Health (NIH) is the current leader in this area, having adopted a mandatory public access policy as required by Sec. 218 of the Consolidated Appropriations Act, 2008. Dozens of other public and private research foundations worldwide have successfully adopted similar policies. NSF should incorporate a similar mandatory policy in the AAG. Furthermore, NSF should improve on the NIH policy by reducing the “embargo” period when manuscripts can be withheld from public access from the current maximum of twelve months to a six-month maximum, as several other research funders worldwide have done.

However, as this comment is directed to the Task Force on Merit Review, I will focus on the dissemination consideration of the Broader Impacts criterion, rather than the requirements of the AAG. To be clear, even if the dissemination requirements of the AAG are strengthened, the dissemination consideration of the merit review criteria also should be retained and strengthened.

The first regard in which the dissemination consideration of the merit review criteria is inadequate is its construction. Currently, broad dissemination is a consideration only of the Broader Impacts criterion, not the Intellectual Merit criterion. However, dissemination is properly understood as fundamental to both the intellectual merits of the proposed activity as well as its broader impacts.

The thrust of the current consideration is that maximizing the social value of the funded project requires communicating the project’s results to relevant audiences outside the research community, such as industry and policymakers, and to the public to enhance the public understanding of science. This is useful strategy to increase the broader impact of NSF funding and should be maintained. In particular, it supports the requirements of Sec. 526 of the America COMPETES Reauthorization Act of 2010, which directs NSF’s Broader Impacts criterion to advance the goal of “increased public scientific literacy.”

However, even within the academic community, the broad dissemination of research results cannot be taken for granted. Access barriers imposed by the high and rising cost of serials and monographs can significantly hamper the circulation of knowledge. These barriers can be particularly imposing to researchers and students at smaller institutions and in developing countries. Additionally, reticence to share data or materials with other researchers, or delays in doing so, also hinder the progress of science.

Thankfully, online technologies enable innovative approaches to the broad dissemination of research information which previously was only shared in small circles. These approaches already have begun to bear fruit. For instance, the NIH-supported Alzheimer’s Disease Neuroimaging Initiative was recently highlighted by the New York Times for its innovative approach to data sharing which is already being emulated. Given the promise of openness, the Board should ensure that the merit review criteria promote the broadest possible dissemination of results.

What changes, if any, would you like to see made to the merit review criteria?

If the Board retains the current criteria, it should add a consideration for broad dissemination in the Intellectual Merit criterion, in addition to the current consideration in the Broader Impacts criterion. Such a consideration might read, “Will the proposed activity ensure the broadest possible access to its results within its own field or across different fields?”

Alternatively, the Board might adopt a single consideration that addresses broad dissemination both within and beyond the research community.

What role should the institution play to ensure that the intellectual merit and broader impacts in NSF proposals can be realized?

NSF should provide additional guidance to proposers on how best to address the dissemination consideration. The Task Force will be aware of Sec. 526 of the COMPETES Reauthorization Act, which directs NSF to better inform proposers as well as staff and reviewers about the Broader Impacts criterion’s requirements, among other changes. The process of implementing these statutory provisions offers a timely opportunity for NSF to suggest “proven strategies and models” for cost-effective broad dissemination.

Currently, NSF provides a list of examples of representative activities for the dissemination consideration. These examples should be updated to better take advantage of proven strategies. Most critically, NSF should encourage investigators to provide open access to their publications by publishing them in an open access journal or by depositing them in an open access repository immediately upon publication, under an open copyright license. NSF could also encourage investigators to consider the impact of their publishers’ policies and pricing on the broad dissemination of their research. Further, NSF should encourage investigators to post their data online for free public access, and to freely distribute online any software created resulting from NSF funding under a free software license, depositing both in appropriate repositories as applicable.

Beyond mere suggestions of activities, NSF should refer investigators to resources on how to accomplish these activities, such as existing guides prepared by the library community and others. NSF should also encourage institutions to play a more proactive role in supporting investigators in maximizing the dissemination of their research, including collaboratively sharing resources and strategies between institutions.

Additionally, NSF should ensure that these resources and guidance are available to its reviewers and staff, and that they duly take into account these activities in reviewing proposals’ commitment to broad dissemination of research.

What impact, if any, has NSF’s two review criteria had on how you think about developing your research projects?

Any other comments?

Thank you for the opportunity to comment on the merit review criteria. Please do not hesitate to contact me with any questions.

There’s a bit of buzz about OA + POD (open access + print-on-demand) as a model for books, particularly for small scholarly publishers like university presses. Consider the following: a book published gratis OA + POD, with no copyright license, all rights reserved (ARR).

• If I legally acquire a digital copy of the book (downloaded with rightsholders’ permission), under copyright, am I permitted to print a copy of the book for personal use?
• If not: would fair use or another exception apply?
• Is the fair use analysis affected by the offering of print-on-demand?
• If I am permitted to print a copy for personal use: am I allowed to pay someone else to do the printing for me, e.g. by bringing the file to a commercial copyshop?
• If so: Do ARR publishers know that?
• What if the copyshop advertises that they will download and print the file for the customer?

Now consider a book published OA + POD, with a Creative Commons NonCommercial (NC) license.

• Presumably I am now unambiguously permitted to print a copy of the book for personal use.
• Am I allowed to pay someone else to do the printing for me, e.g. by bringing the file to a commercial copyshop?
• If so: Do NC publishers know that?
• What if the copyshop advertises that they will download and print the file for the customer?

Similar questions apply to related scenarios, e.g. paying an intermediary to download the file for you and deliver it on physical media, or to format and deliver it for an e-reader.

• The revised settlement cuts out a huge swath of international works. There’s no legal reason for this, since the settlement is based in U.S. law, which treats works equally regardless of where they were published. (Moreover, the settlement only provides access to users in the U.S.) Yet I haven’t seen one public interest advocate criticize the loss to access that will be the result of this change.
• The discussion of this change has mostly been summarized as “foreign language works are now excluded”. But that’s a misleading oversimplification. The new settlement includes works published in the U.S., UK, Canada, or Australia, or registered with the U.S. Copyright Office. That will certainly include many non-English works (remember Canada is bilingual?). It will also exclude many English works: consider New Zealand, Jamaica, India, or many other English-speaking countries.

• Much criticism has focused on the question of orphan works. This is a bit baffling to me. The settlement would provide an unprecedented access to orphan works. Indeed, to me this is the biggest benefit of the settlement.

  The main criticism of this is that Google would be the only provider of access to these orphan works. Monopoly access is certainly undesirable (particularly given the other flaws of the settlement: the privacy weaknesses, the DRM, the single interface, the overall market position of Google, etc.). But isn’t monopoly access (with antitrust scrutiny) better than no access?

  The only way the answer is “no” is if the settlement holds back progress toward non-monopoly access. For instance, a settlement clause that guaranteed Google competitors the same terms (even if they had to do the scanning themselves) would open competition. Obviously, Google is not interested in such an approach, and since the settlement is a negotiation between Google and the plaintiffs (who I would guess to be agnostic on that question), we shouldn’t expect to see those terms unless the judge or the Department of Justice forces them.

  A legislative solution, such as proposed by the Copyright Office, would be an improvement as well. But orphan works reform has so far stalled in Congress, and I haven’t seen any indication it will be a priority for the current Judiciary Committee. For its part, Google says it will still support orphan works reform if the settlement is approved.

  I’m not sure how to predict what the effect of the settlement would be on the prospects for legislative action. One the one hand, Congress might say, “It looks like Google has solved that problem, so we don’t have to do anything.” Alternatively, Congress might say, “That Google settlement seems to have riled a lot of people up; I’d rather not put my stick in that antpile.” On the other hand, the settlement might give greater impetus to Google’s competitors to tell Congress, “We’re on unequal terms now; we need you to pass orphan works reform to level the playing field.” No matter what happens, I don’t expect this Congress to pass orphan works reform. How long are we willing to wait?

• Speaking of orphan works, the Unclaimed Works Fiduciary is a trustee with one hand tied. As I reported for OAN, the UWF — an independent agent entrusted to manage the works of rightsholders who haven’t claimed their works under the settlement — doesn’t have all the powers of an actual rightsholder. Whereas a rightsholder is guaranteed under the settlement the options to, e.g., set a zero price for her work, to apply a Creative Commons license, or to remove DRM, the UWF isn’t guaranteed those same options. In fact, the UWF can only exercise those options with the approval of the Book Rights Registry, which is run by publisher and author representatives. So if the UWF came to the conclusion that the best fiduciary interest of its absentee rightsholders was represented by making their works freely available, it would not necessarily be able to do so. Given the growing suggestions that making a book freely available often has no discernible negative consequence on sales revenues for that book, and in some cases may even increase sales, the settlement should not exclude that option.

In late 2006 or early 2007, I was looking for ways to get students interested in open access. I had started to become versed in the topic myself a few months earlier, after my library announced it planned to cut subscriptions around the same time the Federal Research Public Access Act was introduced for the first time. At the time, there were no resources for students and no student organizations meaningfully engaged with the issue. I helped the Alliance for Taxpayer Access scrape together some basic information for and about students, but no one paid much attention.

At some point, I had the idea of picking a day to try to focus student attention on open access. We’d choose a date and ask our few student allies to organize some activities to speak out on the issue. This became the National Day of Action for Open Access.

We didn’t have much lead time to plan, and few resources. Not a lot of people participated — but a few did. There wasn’t much attention, but we did get an article in the Washington Post, where I went completely off-message. (Coincidentally, the reporter was Rick Weiss, who later edited Science Next, which included an essay by me about open access.) It was a start.

By the next year, I was consulting for SPARC. We decided to revive the concept, but shifted the schedule and the focus: not just students, we wanted everybody to make noise about open access. For Open Access Day 2008, we had more time and more resources. In organizing it, I dropped the ball too many times, but thankfully someone was always there to pick it up. The response was much bigger; we made a splash.

After 2008, the organizers made two strategic decisions which I disagreed with at the time but were absolutely right. One was to expand the day to a week to make scheduling easier. The other was not to organize a central event, but instead to rely more on the partners and hosts to take more initiative. I was afraid we’d have insufficient focus and momentum. Instead, we let a hundred flowers blossom. The more flexible schedule, along with an increased role for partnerships — and our experience and increased visibility from the first time around — combined to make Open Access Week the most vibrant outing yet. The breath and depth of activities worldwide, along with a number of high-profile announcements timed for the week, are truly remarkable. I haven’t been very involved since the early strategic planning, so I can’t claim much credit. But I am thrilled and impressed with the outcome.

Most personally touching for me are the events in Cuba. Growing up in Florida, Cuba was only 90 miles across the strait but impossibly far culturally. There is no direct fiber optic link, nor even direct postal service, between Cuba and the U.S.; as an American, I need special permission from my government to travel there. Reportedly, only 2% of Cubans have Internet access. So it was a revelation to realize that our message of open access to scholarship had resonated in Cuba. For me, it’s a symbol of what open access is all about: the free exchange of knowledge and ideas worldwide.

Happy Open Access Week. May it be the first of many.

So what’s the point of AcaWiki when almost all articles have abstracts, which are summaries and usually available gratis? Well, AcaWiki summaries are also libre (CC Attribution license), so they invite reuse: mashup, translation, and so on. They’re also editable, so they can evolve and be improved.

Abstracts vary widely, usually shaped by the journal’s format: sometimes they’re several paragraphs, something just a few sentences. They might outline the methodology or they might not. They are usually written at the level of specialists in that field, so they may or may not be much use to other readers.

There’s room for improvement and innovation in the world of summary, in other words. For instance, Emerald launched a program asking authors to provide a summary highlighting potential applications. RNA Biology requires its authors to write up their findings on Wikipedia. BMJ publishes only one-page abridgments in its print edition, with the full article available online.

For a more direct comparison, see WikiSummary, which predates AcaWiki but covers only political science.

Two other points of comparison: journalism / press releases and Wikipedia.

Press releases are gratis; science journalism may or may not be gratis; both are rarely libre. They only cover new studies: good luck finding coverage of an article from 1989. They rarely provide a full citation to the original article. They often discuss only the findings, with little consideration of methodology. They frequently focus on studies with controversies or practical applications, rather than new theories or research methodologies. In reporting the most interesting (a.k.a. most titillating) of the findings, journalism sometimes distorts the impression of the overall study. Meanwhile, press releases try to paint the most positive picture. Since they’re written for a general audience, and often not written by someone with a background in the field, they may be too general.

If we consider research blogging in this category, conversely, the writing may be too technical. It may be more commentary or critique than summary.

Wikipedia is gratis and libre. It’s written for non-specialists (in theory), but can also go into more detail. The main difference from AcaWiki is that most academic papers will not be “notable” enough to merit their own Wikipedia page; even if someone wrote them, they would probably get deleted. As an encyclopedia, Wikipedia provides a higher-level overview. There could be some other conflicts with Wikipedia policies, such as those against publishing original research or authors writing about themselves or their work.

All of the aforementioned resources have their uses, but as we can see, AcaWiki has its niche. I hope it thrives there.

In disclosure, I did some paid work for AcaWiki some months ago, but am not actively involved in the project.

[Conyers:] My bill would restore longstanding federal copyright policy in this area. It reverses a provision slipped into an appropriations bill in the middle of the night, with no consultation with the Committee which is actually supposed to write the law in this area, the Judiciary Committee, which I chair. …

My bill lays down a marker indicating that issues this complex, with important values and convincing arguments on both sides, should not be decided by a few lawmakers without relevant jurisdictional expertise in the dark of night with no meaningful public scrutiny or input. …

I do have some sympathy for Conyers’ process concerns. I have minor misgivings about the process in which the NIH policy was written into law, via the appropriations process. By my count, neither open access generally nor the NIH policy specifically were the subject of a hearing before the policy was signed into law. I think that’s unfortunate; public access is a significant public policy issue and it should have had a public hearing. That’s not to say there was no public discussion in Congress: it was raised at least as far back as 2005, in the Senate confirmation hearings for Health and Human Services nominee Michael Levitt, and again in 2006 at a House Appropriations Subcommittee hearing. But the NIH has now had a public hearing, courtesy of last year’s incarnation of Conyers’ own bill. Even if we would have preferred a hearing ex ante, you can’t change the past.

But here’s the problem with Conyers’ claim: open access is not copyright policy. At least, the NIH Public Access Policy is not copyright policy: it doesn’t amend copyright one whit, and even specifies explicitly that the law be implemented “in a manner consistent with copyright law”.¹

Since the NIH policy is a matter of the disposition of federal money, it’s appropriate for the Appropriations Committee to make policy in this area. It’s also a matter of science and education (and, in the case of the NIH, health): it’d be appropriate to hear from committees in those areas, too. If Conyers wants to ensure the issue is seen by committees with “relevant jurisdictional expertise”, he ought to ask those committees to hold hearings.

Instead, Conyers sees it as a copyright issue, because some publishers rely on a certain method of acquiring and managing copyright for their business model². In other words: according to Rep. Conyers, tangential copyright concerns should come before the efficient and equitable spending of taxpayer dollars, and before health, science, and education!

That’s a crazy approach to public policy. It’s a shame, it’s misguided, and Congress should reject it.

¹ Contrast, for instance, then-Rep. Martin Sabo’s 2003 Public Access to Science Act, which proposed an actual amendment to copyright law, and was in fact referred to the Judiciary Committee.

² Increasingly, even subscription publishers rely on this model less and less, between allowing self-archiving, providing delayed and selected OA, and offering hybrid and even full OA options. Moreover, these publishers also have always published papers by government employees, which are free of any copyright whatsoever.

I’ve encountered a similar challenge in a different context: work contracts. Even friendly organizations tend to use legal boilerplate in their contracts — which typically treats your intellectual production as a work for hire, assigning exclusive copyright to your client or employer. This should be problematic for anyone: not only do you lose the right to apply a CC license to your work, you lose the right to use your work for any purpose without getting your (former) employer’s permission.

Without getting into a discussion about the work-for-hire doctrine, there’s an easy way around this. You can assign copyright to your employer, but you get a non-exclusive license, too. This is similar to the logic of the author addenda of the scholarly publishing world. They can do anything they want with the content you produced — but you can, too.

There are some common conditions an employer will want in this situation, which I find pretty reasonable:

• The license only applies to non-confidential materials.
• The employer gets right of first publication and may want an embargo on other uses (e.g., you can’t publish it elsewhere for 30 days).
• The employer has a right of attribution and may want a link back.
• You can’t imply the employer endorses your re-uses.

Conveniently, the latter conditions are already written into the Creative Commons licenses.

Here are three live examples, the first two without a CC license, the third with:

Any written work product created by you under this agreement will be deemed a “work made for hire” under Section 101 of the United States Copyright Act of 1976, as amended. [Client] hereby grants you the royalty-free, unlimited, perpetual, non-exclusive, irrevocable right and license to make, use, copy, distribute, display, publish, perform, modify, or translate any written work product not containing Confidential Information for any purpose and in any medium worldwide and to sublicense the foregoing rights, and this sublicense right, to others.

Contributor acknowledges and agrees that [client] owns all right, title and interest in and to the Works, each which is hereby deemed to be “work made for hire” (as such term is defined in 17 U.S.C. § 101). To the extent that a Work may not be considered a “work made for hire,” Contributor hereby irrevocably transfers and assigns to [client] all of Contributor’s right, title, and interest in and to the Work. To the extent Contributor retains any right, title or interest in or to the Works, Contributor hereby grants to [client] a perpetual, irrevocable, fully paid-up license to use, reproduce, distribute, display and perform, prepare derivative works of and otherwise modify all or any portion of the Works in any form or media. Contributor further waives any “moral” rights or other rights with respect to attribution of authorship of integrity of the Works.

Subject to the terms and conditions hereof, [client] hereby grants to Contributor a royalty-free, unlimited, perpetual, non-exclusive, irrevocable right and license to make, use, copy, distribute, display, publish, perform, modify, or translate the Works (including portions thereof) for any purpose and in any medium worldwide and to sublicense the foregoing rights, and this sublicense right, to others; provided, however, that (a) Contributor attribute the Works (or portions thereof) to [client], and require sublicensees to do so; (b) any such use can only be made after thirty (30) days following [client]’s first publication of same (unless [client] agrees otherwise); and (c) Contributor shall require that sublicensees may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement with [client]. Notwithstanding the foregoing, Contributor may not make any changes to the Work in a manner that alters its editorial intent without prior written consent; however, this provision shall not bind any sublicensee receiving a license which permits modification.

Any Works not containing Proprietary Information shall be made available to [author] under a Creative Commons Attribution 3.0 Unported license. Attribution of non-proprietary material shall be in the name of [client].

I forget who took the photo, either Karen or Fred. Either way, it was CC-licensed. I don’t know whether they attributed; anyway, it’s fair use. (Thanks to Hendrik for the tip.)

• Researchers want to publish their research in academic journals.
• As author, the researcher owns the copyright inherent in her article. (This doesn’t apply to works produces by government employees, such as intramural NIH researchers, which are not subject to copyright and are in the public domain. Different considerations apply when the author is an employee or contractor and agrees contractually that the employer or client will own the copyright in the work. But this is the situation for most academic researchers.)
• These journals often ask researchers to transfer exclusive copyright to the journal as a condition of publication. This “request” is usually in the form of a boilerplate template license (which is not presented as negotiable).
• If the author signs away her copyright, then (absent any other agreement, such as a journal policy or an accepted addendum to the copyright transfer agreement) the author will not have sufficient rights to self-archive a copy of her article in an open access repository (aside from any rights which may exist under fair use or other copyright exceptions) or to make it available under an open license (such as a Creative Commons license compatible with the BBB definition of open access).

The existing journal policies and author addenda vary in their specifics: not all of them offer as much flexibility for the author as is desirable for open access. (For instance, they may specify that only certain versions of the article manuscript may be self-archived, or only in certain locations — e.g., on the author’s personal Web site but not in a disciplinary repository — or may not allow the author to apply a CC license to the article.) It’s also important to note that not all journals ask for exclusive copyright: some ask only for the rights necessary to publish the article; others (particularly open access journals) require the author to agree to a CC license.

But for journals that do ask for exclusive copyright, the problem isn’t that the author is giving the journal too many rights (as is sometimes portrayed in the rhetoric around this subject). Rather, the problem is that the author isn’t keeping enough rights. If we were discussing a tangible object, then the preceding two sentences would be semantically identical, but copyright is an intangible: the author can give away rights and keep them at the same time. This point isn’t always made clear.

The ideal approach, then, gives the broadest rights to both the journal and the author. Most important here is the author: as I’ve mentioned, some of the existing addenda and journal policies are too narrow in their “grant” (return) of rights to the author. Ideally, the author should end up with a set of rights as broad as copyright itself: either copyright itself, or a non-exclusive, royalty-free, irrevocable license to do anything with the work (including to sub-license it).

But there’s also little harm in giving a broad grant of rights to the journal. In fact, we can imagine a harm in giving too narrow a grant of rights: for instance, a well-meaning journal that wishes to reproduce the article in a way that will improve access or usefulness, but which was only granted (say) a right of first publication and of reproduction in the original medium — combined with an unlocatable author (or her heirs), the article is effectively an orphan work.

We can imagine few objectionable uses of a scientific article — or at least, few objectionable uses to which we think the author should actually be able to object: this is one the premises of open access. So there’s not much harm in giving the publisher, as well as the author, wide leeway in permission to use and re-use the article.

(As always, I’m not a lawyer, this is not legal advice, etc. …)