Last week there was a hearing on a new bill before the House Judiciary Committee, the “Fair Copyright in Research Works Act.” Think of it as the Clear Skies Act for copyright; an odious piece of corporate welfare wrapped in a friendly layer of doublespeak. The bill, introduced by Michigan Congressman John Conyers, would prohibit policies like the NIH Public Access Policy by making it illegal for government funding agreements to require any sort of copyright transfer or license from the grantee. It would make it illegal for U.S. government agencies to seek any rights at all in the research that they fund. This is anything but fair. Indeed, it is manifestly unfair to the taxpayers who ultimately pay for the research, and on whose behalf the research is conducted.

Publishers have pushed for this bill because they fear that open access mandates will reduce their profits. If people can access the research for free online, who will pay millions of dollars for subscriptions? Lots of people, actually, but that’s another post.

Instead of baldly admitting that what they seek is protection for their dying business model, publishers argue that the NIH Public Access policy violates their copyrights. The assertion is hogwash. Copyrights belong to authors before they belong to publishers. Authors can license their work however they please; the fact that they have traditionally signed over all of their rights to publishers without compensation does not mean they should continue doing so. Indeed, the case can be made that those who pay the authors — including public entities such as NIH and NSF that support research — could require assignment of some or all rights as a condition of receiving the grant in the first place. I wouldn’t favor such a policy, but it’s fatuous to suggest that Congress should limit the scope of contracts between grantors and grantees.

Allan Adler, VP of the Association of American Publishers, issued a statement in which he had the gall to say that “Government does not fund peer-reviewed journal articles—publishers do.”

That’s just not true. The NIH spends over $28 billion in taxpayer money annually to fund research. Researchers write articles about their findings, and their peers review those articles, without compensation from publishers. Without the research, there would be nothing to publish. Largely due to historical accident, publishers manage the peer review process, helping journal editors to badger referees into reviewing articles, generally for no pay. The value of the scientific expertise that goes into refereeing dwarfs that of the office expenses incurred by publishers in managing the process. The referees’ salaries are paid by universities and research institutes, not by publishers. Basically, we have a system in which the public pays for the research, the universities pay for the refereeing, the publishers pay for office work to coordinate the refereeing, and also for some useful editing. Then the publishers turn around and sell the results back to the universities and to the public who bore almost all of the costs in the first place.

The people of the United States pay good money to learn about the world. It would be a travesty if Congress decided that the interests of a few publishers were more important than the research investments of the American public, and that’s exactly what this bill would do.