On jurisdiction; or, letting copyright trump science

Rep. John Conyers has released his response to the widely-circulated open letter by Lawrence Lessig and Michael Eisen criticizing Conyers’ anti-open access bill, H.R. 801. Eisen, Steven Harnad, and Peter Suber have already responded ably to Conyers’ response. There’s one thing I would add:

[Conyers:] 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. …

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. …

I do have some sympathy for Conyers’ process concerns. I have minor misgivings about the process in which the NIH policy was written into law, via the appropriations process. By my count, neither open access generally nor the NIH policy specifically were the subject of a hearing before the policy was signed into law. I think that’s unfortunate; public access is a significant public policy issue and it should have had a public hearing. That’s not to say there was no public discussion in Congress: it was raised at least as far back as 2005, in the Senate confirmation hearings for Health and Human Services nominee Michael Levitt, and again in 2006 at a House Appropriations Subcommittee hearing. But the NIH has now had a public hearing, courtesy of last year’s incarnation of Conyers’ own bill. Even if we would have preferred a hearing ex ante, you can’t change the past.

But here’s the problem with Conyers’ claim: open access is not copyright policy. At least, the NIH Public Access Policy is not copyright policy: it doesn’t amend copyright one whit, and even specifies explicitly that the law be implemented “in a manner consistent with copyright law”.1

Since the NIH policy is a matter of the disposition of federal money, it’s appropriate for the Appropriations Committee to make policy in this area. It’s also a matter of science and education (and, in the case of the NIH, health): it’d be appropriate to hear from committees in those areas, too. If Conyers wants to ensure the issue is seen by committees with “relevant jurisdictional expertise”, he ought to ask those committees to hold hearings.

Instead, Conyers sees it as a copyright issue, because some publishers rely on a certain method of acquiring and managing copyright for their business model2. In other words: according to Rep. Conyers, tangential copyright concerns should come before the efficient and equitable spending of taxpayer dollars, and before health, science, and education!

That’s a crazy approach to public policy. It’s a shame, it’s misguided, and Congress should reject it.

1 Contrast, for instance, then-Rep. Martin Sabo’s 2003 Public Access to Science Act, which proposed an actual amendment to copyright law, and was in fact referred to the Judiciary Committee.

2 Increasingly, even subscription publishers rely on this model less and less, between allowing self-archiving, providing delayed and selected OA, and offering hybrid and even full OA options. Moreover, these publishers also have always published papers by government employees, which are free of any copyright whatsoever.

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