November 11, 2014

California passes first state-level open access law


California just gave academic publishers the bird. Specifically, the California quail, which is about as insolent and imperturbable a bird as you can imagine. Image via Wikipedia.

California just gave academic publishers the bird. Specifically, the California quail, which is about as insolent a bird as you can imagine. Image via Wikipedia.

There was one happy moment of bipartisan achievement this fall, before the Republicans swept the Senate: on September 26th, a bill co-written by Assemblyman Brian Nestande (R–Palm Desert) and Assemblyman Mike Gatto (D–Los Angeles) was signed into law by California governor Jerry Brown.

The bill, the California Taxpayer Access to Publicly Funded Research Legislation (AB 609), makes California the first state to put an open access law on the books.

Just to catch you up on where things are with open access legislation in the US: in 2008, former president (and great painter) George W. Bush signed a bill that required that all research funded by the National Institutes of Health be made available for free in the digital repository PubMed Central, starting twelve months after initial publication.

Efforts have been made to extend the law beyond the NIH: the Fair Access to Science and Technology Research Act (FASTR) bill, first introduced in February 2013, would expand open access policies to all departments with research budgets of over $100 million (which would include all the biggies—Department of Ed, Department of Defense, Department of Homeland Security, the EPA, NASA, the National Science Foundation). Though FASTR’s still on the table, a broader bill passed last January put many of the elements of FASTR into practice (I blogged about it here).

But California, trailblazer that it is, is the first to address this issue at the state level. Actually, it may not be because of its innate trailblazing nature that it has done this, but because it’s an issue that’s particularly pressing for the state: the UC schools produce a whopping amount of publicly funded research. According to Michael Hiltzik, writing about the law for the Los Angeles Times, “UC researchers account for 12% of the content of Nature… among public institutions, UCSF itself is the largest single recipient of NIH funding.”

This is a double-sided situation, though. Because open access advocates also criticized the bill for requiring that material be made OA after twelve months, instead of after six as was originally proposed, a change that was made to bring it into line with the NIH and their policies. From an article by Lisa Peet in Library Journal: “The new bill’s drafters felt that a shorter state embargo period could result in a potential conflict with California researchers’ eligibility for federal grants, according to assemblyman Nestande’s chief of staff Nanette Farag.”

In other words, California lawmakers weren’t ready to introduce any potential conflicts between academics and their eligibility for federal grants, even though, as Hiltzik points out, California’s influence is so great that it might just have been able to shift federal policy.

And it wasn’t just to keep life simple. Hiltzik quotes Farag on another group of people with something to lose here: “The 12-month standard helped to quell what she says was ‘a great deal of opposition from the publishing industry.’” I can imagine the execs at Nature, which is owned by Holtzbrinck, contemplating 12% of their content slipping inexorably out of their hands after six months, like soap in the shower. Except this is soap that they neither made or paid for, and then sold back to you for hundreds of dollars a bar. Ah, I love the business model of academic publishers almost as much as that of artisanal pencil-sharpeners!

Sarcastic commentary and shameless pluggery aside, despite its limitations (other than the 12-month embargo, it currently only applies to research funded by the Department of Public Health), AB 609 is a big deal, and should lead the way for similar bills. New York has had one under consideration since January 2013, though we better get moving—Illinois’s open access bill for all research produced at state universities and colleges has passed the House and Senate, and awaits only governor-elect Bruce Rauner‘s signature.


Sal Robinson is an editor at Melville House. She's also the co-founder of the Bridge Series, a reading series focused on translation.