Lawrence Lessig and I have been writing about the link between publisher contributions to members of the House Judiciary Committee and their support for H.R. 801 -- a bill that would end the newly implemented NIH public access policy that makes all works published as part of NIH-funded research freely available online. On Friday, House Judiciary Chairman John Conyers (D-MI) -- lead sponsor of the bill -- responded in a letter on Huffington Post.
The first several paragraphs of Conyers' letter contain an outline of his record as a progressive politician. But no record, no matter how distinguished, is an excuse for introducing an atrocious piece of legislation that sacrifices the public interest to those of a select group of publishing companies.
Conyers would have us believe that it is just a coincidence that his bill would erase a government policy vehemently opposed by publishers who have contributed to his campaigns. But his response to our letter -- like the bill itself -- is taken straight from the publishers' playbook.
Conyers trots out the publishers' two favorite lines of attack against the policy: 1) that the NIH policy is taking a right (in this case a copyright) away from publishers, and 2) that making taxpayer-funded research available to taxpayers will bankrupt publishers and thereby destroy science.
Both arguments are specious and reflect fundamental ignorance about how science and scientific publishing work. The accusation that the policy is bad for science because it will drive publishers out of existence is the more serious one, so I will deal with it first. Here is what Conyers wrote:
... on the narrow merits of the issue, Professor Lessig and proponents of "open access" make a credible argument that requiring open publishing of government-funded research information furthers scientific inquiry. They speak out for important values and I respect their position.
While this approach appears to further and enhance access to scientific works, opponents argue that, in reality, it reverses a long-standing and highly successful copyright policy for federally-funded work and sets a precedent that will have significant negative consequences for scientific research.
These opponents argue that scientific journals expend their own, non-federal resources to manage the peer review process, where experts review academic publications. This process is critical because it provides the quality check against incorrect, reckless, and fraudulent science and furthers the overall quality and vigor of modern scientific debate. Journal publishers organize and pay for peer review with the proceeds they receive from the sale of subscriptions to their journals, thereby adding considerable value to the original manuscripts of research scientists.
The policy Professor Lessig supports, they argue, would limit publishers' ability to charge for subscriptions since the same articles will soon be publicly available for free. If journals begin closing their doors or curtailing peer review, or foist peer review costs on academic authors (who are already pay from their limited budgets printing costs in some cases), the ultimate harm will be to open inquiry and scientific progress may be severe. And the journals most likely to be affected may be non-profit, scientific society based journals. Once again, a policy change slipped through the appropriations process in the dark of night may enhance open access to information, but it may have unintended consequences that are severe.
Far from being the reckless act Conyers portrays, the NIH policy is actually fairly conservative. It requires that papers that arise from NIH funded research be made freely available, through a website run by the National Library of Medicine, within 12 months of publication -- not immediately. This delay between publication and free public access was put in precisely because it will allow publishers to recoup, and profit from, their investment in publishing by charging for access to the freshest material.
Science moves far too fast for active researchers to afford a year's delay before reading papers in their field. Thus universities and other research institutions have to maintain subscriptions to journals even if their year-old content is freely available. Many journals, realizing that their revenue comes primarily from new material, already make their complete contents freely available online after a year or less. And these journals have not reported a wave of canceled subscriptions -- or any appreciable loss of revenue. So both empirical data and publisher actions refute Conyers' central argument against the NIH public access policy.
Conyers' argument is also clouded by several misconceptions about scientific publishing. He correctly identifies peer review as the most important role of scientific journals. But he is incorrect in his assertion that publishers make a tremendous investment of "their own, non-federal resources" in the process of peer review. While publishers supervise peer review, the process itself is carried out voluntarily by members of the research community. Scientists receive no remuneration whatsoever when they review a paper -- they do it instead because they recognize that peer review is central to the scientific process.
Since the salaries of most American scientists are paid, directly or indirectly, by the US government, the peer review process is actually a massive federal subsidy to publishers, whose very existence is based on the tens of billions of annual taxpayer dollars invested in scientific research. That even after they have had a year to profit from this taxpayer largesse some publishers are still unwilling to grant the public access to copies of papers they paid to produce and review is unconscionable.
And while Representative Conyers' publishing friends may have convinced him that there are severe unintended consequences that will arise from the NIH public access policy, the scientific community -- who has been debating this issue for over a decade -- strongly disagrees. Elias Zerhouni -- who was NIH Director until last year -- spent years crafting this policy in consultation with scientists, publishers, and members of Congress. It is strongly supported by his predecessor, Nobel laureate Harold Varmus, and a cadre of his American Nobel prizewinning colleagues. And the world's leading private medical research organizations -- the Howard Hughes Medical Institute and the Wellcome Trust -- have, after extensive research and discussion, adopted even more aggressive policies than the NIH. Does Representative Conyers really think he better understands what's good for science than do all of these groups and people?
Now, let's return to the issue of copyright. Conyers writes:
... there is a serious process issue at stake here. 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. Thus, Professor Lessig simply ignores that this so-called "open access" policy was not subject to open hearings, open debate or open amendment in Congress and itself represents the sort of process-compromised special interest provision that he generally rails against. Now the special interests here may be highly worthy, but an openness hawk such as Professor Lessig ought not countenance procedural gimmicks just because they yielded a favored result.
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. Unlike the measure my bill would repeal, my bill is fully available to the public and has my name attached to it. If it moves through my Committee, which it has not yet, it will be subject to full public hearings - and open to criticism and improvement from all sides.
As someone who has been involved with this issue and has closely followed the development of the NIH public access policy, I can say that Conyers' history of this policy is grossly inaccurate. The policy was developed in consultation between Congress and the NIH over the course of several appropriation cycles, during which time there was extensive back and forth between Congress and the NIH as they worked to craft a policy that would ensure public access to taxpayer-funded research.
Everyone in the scientific research and publishing communities knew about the policy for years. NIH Director Elias Zerhouni met with all of the stakeholders many times to make sure their views and issues were considered. And the policy was opened up to public comment before it was implemented. This is hardly a bill snuck in by special interests and rammed through in the middle night with no public comment, as Conyers would have us believe.
Now I am no expert of congressional protocol, but it seems perfectly sensible to me that the Appropriations Committee, whose job it is to make sure that taxpayers' money is spent wisely and efficiently, would be the relevant committee for setting the terms under which scientists could receive federal dollars.
Conyers' argument that the bill should instead have gone to his Judiciary Committee rests on the dubious notion that NIH policy modifies "longstanding federal copyright policy in this area". But the policy itself says nothing about copyright -- it merely requires that NIH grantees make copies of their published papers available to the public. It is implemented as a modification of the contract grantees always sign with the NIH every time a new grant is awarded -- a contract that already governs data release, publication, appropriate use of animals and other research subjects, etc...
Copyright only comes into the picture because some publishers force scientists, as a condition of publication, to sign away their right to make their papers available to the taxpayers who supported their research and salaries. NIH-funded scientists who still wish to publish in such journals have to amend these highly restrictive agreements so that they maintain the right to make a copy of their manuscript available to the public.
It is actually publication agreements like these that reverse longstanding tradition in scientific publication. Only recently have some journals -- eager to exact more control over government funded research -- denied scientists their historical right to distribute manuscript copies of their papers to their colleagues and other interested parties.
When I started in science -- before the internet became the primary means for disseminating research results -- it was routine practice for my advisors to hand out copies of their papers to visitors and to mail manuscript versions of published papers to other scientists and members of the public -- anyone who wrote to the lab asking for one. And almost as soon as the internet first came online, scientists took advantage of it to make the sharing of manuscripts more rapid and efficient.
There is also a long tradition of providing free public access to print copies of papers describing taxpayer-funded research though the National Library of Medicine in Bethesda, MD, which is now simply continuing this tradition by making manuscript copies of papers available online.
While publishers may find these traditions more irksome in the digital age, it is absurd for them to argue that scientists sharing papers with each other and the public is a radical new invention.
The Copyright Act of 1976, which sets out most aspects of current copyright law, further undermines Conyers' position that the NIH policy is incompatible with copyright. In Section 105 Congress unambiguously recognizes the public right to have access to the product of federal research when they state that "Copyright protection under this title is not available for any work of the United States Government".
Although Congress left open the copyright status of works funded by the US government, the drafters of the bill dealt clearly with this issue in the report language accompanying the bill:
A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a "double subsidy," and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds
...
Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions.
So not only does the NIH policy not alter copyright, in implementing it the NIH acted in precisely the way drafters of the Copyright Act said they should if they determined -- as they have -- that it would be beneficial to the public to have works funded by the NIH made freely available online.
Throughout his letter, Conyers repeatedly cites the need to consider the complex issues around scientific publishing.
I acknowledge that these are complex issues and that there are important values, strong arguments, and passionate supporters on both sides. And I look forward to the coming debate.
Unfortunately, Representative Conyers' actions to date do not support a desire to study or debate these issues. After this bill was introduced in the last Congress, Conyers' Judiciary Committee held hearings in which witnesses repeated pointed out flaws in the bill's logic and approach. In particular, a previous Registrar of Copyrights, clearly sympathetic to the publishers' cause, acknowledged that the NIH Policy was in perfect accord with US copyright law and practice. Why, if Representative Conyers was so interested in dealing with complex issues involved in scientific publishing, did he completely ignore the results of his own hearings and reintroduce the exact same bill in this Congress?
Nothing in the way this bill was crafted, or has been pushed, suggests an interest in balancing these complex issues. This bill clearly reflects the opinions of only one side in this debate. And in defending his support for the bill, Conyers doesn't even bother to put the publishers words into his own voice, repeatedly voicing the words of the NIH policy's opponents as if they were his own.
It clearly offended Representative Conyers when Lessig and I suggested a link between his efforts to end the NIH policy, and publishers' contributions to his campaign. But his sponsorship of H.R. 801, and his letter defending this stance, indicate that he has let the financial support of publishers -- and the resulting close relationship they have with him -- influence his decision making.
I and other supporters of the NIH public access policy stand ready to discuss these issues with Representative Conyers and his committee. But with or without such a discussion, I hope he will recognize the value and wisdom of the NIH public access policy, and withdraw his support for H.R. 801.
Related:
Lawrence Lessig and Michael Eisen: Is John Conyers Shilling for Special Interests?
Lawrence Lessig and Michael Eisen: John Conyers, It's Time to Speak Up
Rep. John Conyers: A Reply to Larry Lessig
Lawrence Lessig: A Reply to Congressman Conyers