John Conyers Tries [and Fails] to Explain His Position

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 to the public 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.  Representative Conyers is a smart man who has worked hard defending the public’s interest on a large number of issues. But no record, no matter how distinguished, can provide an excuse for introducing an atrocious piece of legislation that sacrifices the public interest to those of a select group of publishing companies who just happen – coincidentally I’m sure – to contribute to Representative Conyers and the other backers of the bill. 

Despite his protestations, Conyers response to our letter – like the bill itself – is taken straight from the playbook of the publishers who oppose the NIH public access policy, and only cements my opinion that he is doing this at their behest without taking the time to research or understand the issue. Although he says at several times he is trying to get to the bottom of a complex issue, he ignored evidence presented to his committee during hearings last year and has shown no interest in learning about how scientific publishing actually works. 

Conyers offers two main justifications for his support of H.R. 801. First, seems incensed that the bill mandating the policy originated in the Appropriations Committee and not his Judiciary Committee. Judiciary was the appropriate venue, he argues, because the bill alters copyright. As I will show below, this is incorrect. Second, Conyers trots out the publishers’ favorite trope that the NIH policy will bankrupt publishers and thereby destroy science. Since this is the more substantive claim, 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. 

This argument reflects several gross misconceptions about the nature of scientific publishing. The notion that the NIH policy will lead to massive subscription cancelations is not supported by empirical data or by publisher actions. 

The NIH policy require that works be available within 12 months of publication – not immediately. This delay of free public access was put in place precisely because it would allow publishers to recoup 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 a wide range of journals. Many journals, realizing that their revenue comes primarily from new material, already make their 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. 

Indeed, most publishers have no problem with the NIH policy. These include the most prestigious journals in biomedicine including NatureScience, the Proceedings of the National Academy of Sciences, the New England Journal of Medicine, as well as most other scientific societies, the publishing conglomerate Springer and, of course, true open access publishers like PLoS and BioMedCentral. Many even help their authors by sending copies of their articles directly to the NLM.  It is a small minority of narrow-minded and venal publishers who want this policy reversed. 

Second, publishers do not pay for peer review. Peer review is carried out by members of the research community, who receive no remuneration for this important contribution to the scientific process and the integrity of the scientific literature. Indeed, since the salaries of most American scientists are paid directly or indirectly by the US government, the peer review process can be viewed as a massive Federal subsidy to publishers. That some publishers – who not only get their most important source of skilled labor paid for by taxpayers but are also publishing research that is the product of tens of billions of annual taxpayer dollars – are unwilling to provide the taxpayers with a copy of the 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 32 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 they do all of these groups and people?

Now, let’s return to the issues of process and copyright, which seem to so infuriate Conyers:

… 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 NIH policy was developed over the course of several years, 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. 

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. Once developed, the policy was opened up to public comment. Everyone in the scientific research and publishing communities knew about the policy long before it was implemented, and then NIH Director Elias Zerhouni met with all stakeholders to make sure their views and issues were considered. 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. 

Conyers’ argument that the bill should have gone to his Judiciary committee rests on the dubious notion that NIH policy modifies copyright. But the policy in question does not alter copyright in any way. The NIH policy requires its grantees to make copies of their published papers available to the public. That’s it. This is a modification of the contract made between grantees and 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 since the internet was invented, scientists – especially physicists – 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 of the act 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 question of 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, 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. 

And even if we allow  – for the sake of argument only, because it is absurd –  Conyers his point, that this bill should have gone through Judiciary, is this really a valid excuse to overturn a good piece of public policy with a bad piece of legislation? 

Throughout his response Conyers repeatedly cites the need to discuss 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 do not reflect his words. This bill was introduced in the last Congress. The Judiciary Committee then held hearings on the bill, in which even the publishers’ own witnesses pointed out flaws in its 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. If Conyers were so interested in dealing with a complex issue in a fair and reasonable way, why then did he completely ignore the results of this hearing and reintroduce the exact same bill – one that clearly reflects the opinions of only one side in this debate? 

Conyers concludes by saying:

I hope as the discussion moves forward, we can focus on the merits. 

I agree, and hope that when Representative Conyers finally begins to examine the merits of H.R. 801, he will realize that it should not move forward. 

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