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 open-access 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 open-access 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?