Michael Eisen, John Conyers Tries [and Fails] to Explain His Position, It is NOT Junk, March 7, 2009.  Excerpt:

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 Conyersâ??  letter contain an outline of his record as a progressive politician.  Representative Conyers is a smart man who has worked hard defending the publicâ??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 Iâ??m sure – to contribute to Representative Conyers and the other backers of the bill….

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 publishersâ?? 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….

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 yearâ??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….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 Conyersâ?? 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….

Now, letâ??s return to the issues of process and copyright, which seem to so infuriate Conyers….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 Conyersâ?? 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 taxpayersâ?? 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.

Conyersâ?? 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….This is [merely] a modification of the contract made between grantees and the NIH every time a new grant is awarded….

Throughout his response Conyers repeatedly cites the need to discuss the complex issues around scientific publishing….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 publishersâ?? own witnesses pointed out flaws in its logic and approach. In particular, a previous Registrar of Copyrights, clearly sympathetic to the publishersâ?? 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? …

PS:  Also see my own response to Conyers’ defense of his bill.