March 3, 2009  ·  Lessig

The Huffington Post is running a piece about H.R. 801 (the “Fair Copyright in Research Works Act“), the latest version of John Conyers’ awful idea. The law would forbid entities like the NIH from requiring that recipients of government grants make the product of their research openly accessible. (The current practice requires articles be freely accessible after 12 months.) Instead, Conyers’ proposal would require that after the American taxpayer has paid for the research, the American taxpayer must pay publishers to get access to the product of the research.

The first important word to emphasize in the last sentence is “publishers.” For unlike the ordinary market for creative work, here, the author isn’t paid for his work through the copyright system. It is the government (indirectly) paying for the research that the author (a scientist) creates. Scientists write articles as part of their job; other scientists peer-review those articles (usually for free); and journals then publish those articles without paying the author anything. Those journals, however, then charge libraries across the world an increasingly high rate to get access to the research in those journals. As the industry has become more concentrated, those rates have skyrocketed — rising much faster than inflation.

The “open access movement” was born to create an alternative to this. Even if restrictive copyright was a necessary evil in the days of dead-tree-based publishing, it was still an evil. High costs restrict access. The business model of the scientist is to spread his or her knowledge as widely as possible. Open access journals, such as, for example, those created by the Public Library of Science, have adopted a different publishing model, to guarantee that all all research is freely accessible online (under the freest Creative Commons license) immediately, to anyone around the world. This guarantee of access, however, is not purchased by any compromise in academic standards. There is still a peer-review process. There is still even a paper-based publication.

Pushed by scientists everywhere, the NIH and other government agencies were increasingly exploring this obviously better model for spreading knowledge. Proprietary publishers, however, didn’t like it. And so rather than competing in the traditional way, they’ve adopted the increasingly Washington way of competition — they’ve gone to Congress to get a law to ban the business model they don’t like. If H.R. 801 is passed, the government can’t even experiment with supporting publishing models that assure that the people who have paid for the research can actually access it. Instead, if Conyers has his way, we’ll pay for the research twice.

The insanity in this proposal is brilliantly described by Jamie Boyle in this piece in the FT. But after you read his peace, you’ll be even more puzzled by this. For what possible reason could Conyers have for supporting a bill that 33 Nobel Prize Winners, and the current and former heads of the NIH say will actually hurt scientific research in America? More pointedly, what possible reason would a man from a district that insists on the government “Buying American” have for supporting a bill that basically subsidizes foreign publishers (for the biggest players in this publishing market are non-American firms, making HR 801 a kind of “Foreign Publishers Protection Act”)?

Well no one can know what goes on the heart or mind of Congressman Conyers. But what we do know is what MAPLight.org published yesterday: That the co-sponsors of this bill who sit on the Judiciary Committee received on average two-times the amount of money from publishing interests as those who haven’t co-sponsored the bill.

Now maybe that’s just a coincidence. Maybe Conyers and his friends had a reason of principle to support a bill said by experts to “harm science in America.” But if he did, then he more than anyone else should want a system for funding elections that makes it impossible for people like me to suggest that maybe it wasn’t reason that led him to his silly support for such a stupid bill.

Yet another reason to support citizen funded elections. Yet another reason to join the strike (“strike4change.com“) Change Congress has launched. Promise not to give money to any candidate who doesn’t support irrevocably citizen funded election. (Come on. You don’t want to give anyway.)

At the very minimum, ask Congressman Conyers to explain exactly why — if it wasn’t the money — he’s so keen to hurt science.

  • tom

    Endless thanks and love for finally removing that annoying popup! Now I can read the great posts in their entirety.

  • Hans

    What amazes me most is how cheap this lobbying is. Conyers got $ 9,000, the committee as whole $ 110,950. If the bill is passed, this would imply a huge return on investment.

  • http://brokensymmetry.typepad.com Michael F. Martin

    Not surprisingly, perhaps, Conyers is also reintroducing a patent reform bill today that is highly unfavorable to independent inventors and smaller entities.

    Authors and inventors should stick together this year.

  • http://www.articlev.org john de herrera

    this is yet another symptom. the problem is the manner in which the legislative branch operates, i.e. the dependence of politicians for campaign funds. blaa, blaa, blaa–anyone with half a brain knows this.

    i do not think change can or will occur from the inside, nor do i think the founders thought so either–thus the convention clause. if we achieve the goal of coercing congress to obey our high law, folks like lessig would end up as delegates to a national convention, where they would build consensus between what needs to be fixed, and what could possibly garner the approval of 38 states for ratification.

    this group: http://www.foavc.org has placed all the state applications from the senate and house records on pdf files. in case anyone did not know, we are currently mandated by our supreme law to convoke a national convention.

  • http://encephalosponge.com Jonathan

    This is indeed a very serious problem, only gaining more ground since the bill has been introduced. I addressed open-access publishing as related to scientific researchers on my blog a few months back after a story I read on Ars Technica. The problem I worry about is that the people to whom this matters won’t realize it until it’s too late. It’s sad to see that a congressman can be bought like this. When our tax dollars are funding this research, I don’t see how it can even be argued that open access should not be required!

  • http://www.socialsecuritybullshit.com Steve Baba

    “The insanity in this proposal is “

    I was thinking it’s insane to think the other side is insane,
    but then I would be doing it.

    Perhaps, it’s stupid to think the other side is insane.

  • http://engineering.curiouscatblog.net/category/open-access/ John Hunter

    Thanks for another great post. We need to keep the pressure on those congressman that are not totally bought and paid for so they don’t let their colleagues sell out science for their donors.

  • http://coglanglab.blogspot.com Josh

    This is a great post. Thank you for bringing it to people’s attention.

    It’s not commonly remarked upon, but the current open-access journals require authors to pay fairly hefty fees. NIH, I believe, has started paying the publishing costs for work they funded. Does this bill eliminate that as well?

    Again, since the publishing costs are pretty serious, this could have a significant effect.

  • http://jacobfreeze.com Jacob Freeze

    This is a non-issue for almost everybody in the world, and selling it as “tax dollars paying for the same thing twice” merely panders to the public’s anti-tax idiocy. Americans pay less in the way of taxes than citizens of any other developed nation, and (surprise!) also enjoy less in the way of public services and suffer from the absence of anything that could reasonably be described as a “social safety net.” So now there’s yet another example of “wasted tax dollars,” and it’s a pathetic example at a moment when $9.7 trillion has been committed to cover the losses of failing banks.

  • Michael Sander

    I’m not sure this bill would have such negative impact:
    “The law would forbid entities like the NIH from requiring that recipients of government grants make the product of their research openly accessible.”
    As I understand it, the law would let the scientists keep the rights to their work. Under the bill, if a scientist wants to release their research for free they can; if they she wants to publish the work in a proprietary journal they can. They retain the choice on how to release their information. As you said, the “business model of the scientist is to spread his or her knowledge as widely as possible.” If that statement is true, then the scientist will choose the most efficient mechanism for getting their research into public hands. If the best way of releasing information is through a proprietary journal, then we should use it. This bill seems to give the power to the scientists. Whereas you suggest that the NIH have that power.

  • Liane

    If you own a private company and someone using your company’s funds invents something new, you get the rights. This is the equivalent for the public sector: if someone using our (public) funds invents something, we get the rights. Publicly funded work should be available to the public.

  • Michael Sander

    I think I see the problem here.

    Lessig’s statement that the “business model of the scientist is to spread his or her knowledge as widely as possible” is false. If that were true then scientists wouldn’t submit their work to journals that charged money for access.

    I think there are different motivations at work here. Scientists are motivated by recognition of their intelligence and work by their peers. They publish articles in Nature rather than The Public Library of Science because Nature is more prestigious and will likely lead to a more successful career.

    If you oppose this legislation I think you have to be clear why… We value free access of scientist’s research over the scientist’s interest in being published in a journal of their choice. That is a fair and reasonable value judgment. But, to be clear, in making the choice we are taking something away from scientists.

  • Rick

    “Well no one can know what goes on the heart or mind of Congressman Conyers”

    Truer words were never spoken. He seems to have his daylight positions, like adopting a stronger position than the Senate on investigation of the Bush Administration’s activities, but this one seems to be one of his more shadowy ones. Has Conyers publicly offered justification for the bill?

  • http://coglanglab.blogspot.com Josh

    Sander: the bill does seem to be written as a defense of choice, but that’s on the surface. Academic scientists — which is most of us — must publish to get jobs and get promoted. That’s why we call it “publish or perish.” So while technically one could “choose” not to publish in a journal, the alternative isn’t a very good one.

  • John

    Josh: Which is why the tenure & promotion culture of Universities needs to change. Without the requirement of publishing in the most prestigious journals, faculty and researchers would be free to publish in open access publications.

  • Clem Weidenbenner

    Sander: An excellent point – that scientists have less choice if open access is mandated. But I wonder whether a certain contract isn’t in force before a manuscript is even prepared? When one seeks grant support from an agency requiring open access publication, haven’t they already made a choice? I’m sympathetic to the argument for cases in which the rules changed during the process – Dr Joe gets an NIH grant on Monday, and on Tuesday learns he’ll need to skip publishing in Nature. But even in this instance it seems to me there are many excellent choices at Dr Joe’s disposal. Publishing in PNAS and paying the fee to be open access hardly seems a step backward to me. Am I missing something here?

  • http://www.ok-iraq.com/vb/t205879 اشعار حب

    This is a great post. Thank you for bringing it to people’s attention.