Rep. Conyers defends his bill

Rep. John Conyers, A Reply to Larry Lessig, Huffington Post, March 6, 2009.  Excerpt:

Congress is not perfect, and I respect Professor Larry Lessig’s vigorous effort to change and improve it. Furthermore, as readers of the Huffington Post well know, I am firmly committed to tough oversight and great transparency in government, and I don’t mind taking it as well as dishing it out. But Professor Lessig’s recent comments on the the scientific publishing issue and my sponsorship of a bill on the subject simply cross the line….

To hear Professor Lessig tell it, I introduced a bill that is utterly without merit and entirely the product of shady special interest dealing….

Professor Lessig may or may not know that, last year, the publishing industry supported a version of the "Orphan Works" legislation passed by the Senate that dealt with the use of copyrighted materials whose authors are difficult to locate. This may well be the industry’s highest legislative priority within my Committee’s jurisdiction. I refused to consent to move that bill through the House, however, because I did not think there had been adequate opportunity for all views to be heard. Would a craven shill for "Big Paper" do such a thing? …

First, 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.

Second, 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 only emphasizes the need for proper consideration of these issues in open session.
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. But I hope as the discussion moves forward, we can focus on the merits. No one is well served by ad hominem attacks, baseless smears, or a distorted presentation of the facts.

Comment.  I posted a response at the Huffington Post.  But it’s limited to 250 words and does not support links.  Here’s the unabridged version with live links.

I thank Rep. Conyers for making a public defense of his bill in a forum which offers the public a chance to respond.  I also respect his record on other issues, including civil rights and bankruptcy, and his current efforts to compel the testimony of Karl Rove and Harriet Miers. On research publications, however, he’s backing the wrong horse, and his arguments for siding with publishers against scientists and taxpayers are not strong.

(1) Rep. Conyers insists that the House Judiciary Committee should have been consulted on the original proposal for an openaccess policy at the NIH. However, William Patry, former copyright counsel to the House Judiciary Committee (and now chief copyright counsel at Google), believes that "the claim that the NIH policy raises copyright issues is absurd," and that the Judiciary Committee did not need to be in the loop.  I understand that the House Rules Committee came to a similar decision when formally asked.

Clearly Rep. Conyers disagrees with these views. But they should suffice to show that bypassing the Judiciary Committee was not itself a corrupt maneuver.

If it’s important to revisit the question, I hope Rep. Conyers can do it without backing a bill from a special interest lobby that would reduce taxpayer access to taxpayer-funded research. A turf war is not a good excuse for bad policy. On the merits, see points 2 and 3 below.

For more independent views that the NIH policy does not raise copyright issues, see the open letter to the Judiciary Committee from 46 lawyers and law professors specializing in copyright.

(2) Rep. Conyers accepts the publisher argument that the NIH policy will defund peer review by causing journal cancellations. The short answer to that objection is that (a) much higher levels of openaccess archiving, of the kind the NIH now requires, have not caused journal cancellations in physics, the one field in which we already have evidence; (b) subscription-based journals are not the only peer-reviewed journals; and (c) if the NIH policy does eventually cause journal cancellations, then libraries would experience huge savings which they could redirect to peer-reviewed OA journals, whose business models do not bet against the internet, public access, or the NIH policy.

For a detailed analysis of the objection that government-mandated open access archiving will undermine peer review, and a point-by-point rebuttal, see my article in the SPARC Open Access Newsletter from September 2007.

(3) Rep. Conyers writes that the NIH policy "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." It’s true that the policy reverses a long-standing copyright policy.  But the previous policy was unsuccessful and perverse, and had the effect of steering publicly-funded research into journals accessible only to subscribers, and whose subscription prices have been rising faster than inflation for three decades. Both houses of Congress and the President agreed to reverse that policy in order to allow the NIH to provide free online access to the authors’ peer-reviewed manuscripts (not the published editions) 12 months after publication (not immediately). This was good for researchers, good for physicians and other medical practitioners, good for patients and their families, and good for taxpayers. It was necessary to make NIH research accessible to everyone who could use it and necessary to increase the return on our large national investment in research. It was necessary from simple fairness, to give taxpayers –professional researchers and lay readers alike– access to the research they funded.

On the "significant negative consequences for scientific research":  should we believe publishers who want to sell access to publicly-funded research, or the research community itself, as represented by 33 US Nobel laureates in science, the Association of American Universities, the Association of Research Libraries, and a host of patient advocacy groups?


Peter Suber