Posted on behalf of Meredith Wadman

There’s nothing like having old friends in high places. And Pat Schroeder, the former congresswoman who has been president and chief executive officer of the Association of American Publishers (AAP) for the last eleven years, certainly has such a friend in John Conyers. Conyers is the chairman of the House Judiciary Committee; he and she were sitting side by side as the committee’s two most senior Democrats when she left Congress after 24 years in 1996.

Which may go some way toward explaining why Conyers, a liberal Democrat whom one might expect to be on the other side of this issue, is taking harsh aim at a new National Institutes of Health (NIH) policy requiring NIH-funded scientists to archive their published papers in a publicly accessible database within a year of publication. The policy went into effect in April, after being passed as part of the bill that funded NIH in 2008.

Those long five months ago, open access advocates breathed a sigh of relief. Yesterday, that may have morphed into a gasp of horror. At a Capitol Hill hearing, Conyers announced the introduction of a new bill. The Fair Copyright in Research Works Act would illegalize the NIH policy by amending US copyright law. In essence, it forbids federal agencies from conditioning funding agreements – like NIH grants –– on a requirement that authors make copies of their peer-reviewed articles public. Which, of course, is precisely what the NIH policy does. (The impetus behind it: the populist notion that US taxpayers shouldn’t have to pay to get access to the results of the work that they already fund once through grants from the $29 billion agency.)

It must be said that there’s more than just an old friendship driving Conyers here. There’s pride. It was the House spending committee that wrote the new NIH policy into law. Traditionally, spending committees are supposed to keep their hands off legislating on anything but purse-string issues. As Congress Daily reported, Conyers complained loudly at yesterday’s hearing of his committee’s Subcommittee on Courts, the Internet and Intellectual Property. The appropriators, he lamented, have trampled the “sacred jurisdiction” of his committee and acted “summarily, unilaterally and probably incorrectly” when they implemented the NIH policy.

“Members of Congress are very sensitive about jurisdiction,” notes Allan Adler without irony. Adler, the AAP’s vice president for legal and government affairs, is Schroeder’s key lieutenant on this issue.

Not surprisingly, Heather Joseph isn’t impressed with the Conyers bill. Joseph testified at the hearing as the executive director of the Scholarly Publishing and Academic Resources Coalition, which lobbies for open access. (She was invited to testify by Conyers at 4:45 pm on the evening before the hearing.) She calls the bill a “sledgehammer” that would have potentially enormous consequences for what federal agencies can and cannot do to communicate with the public.

Supporters of the bill, who include the Association of American University Presses as well as the AAP, are equally adamant about its necessity. The NIH proposal “will sooner rather than later destroy the commercial market for these scientific, technical and medical journals,” Ralph Oman, a copyright lawyer from George Washington University Law School, told the subcommittee (Chronicle of Higher Education).

NIH director Elias Zerhouni testified too. He is exercised enough about the issue that he also took time between meetings on Friday to make a day-after-the-hearing call to me. “I told them that taking away public access in a time of advancing information technologies would be a great disservice to both science and public health,” he told me. He added: “ The real question is: does the government have any inherent right to the products of what they pay for? This bill would say: actually the government has no right to the products of taxpayer funded research.” Presenting a slide show to the subcommittee, Zerhouni noted that in 2005, 2006 and 2007, when the now-obligatory NIH policy was voluntary, 19% of NIH-supported articles were posted to PubMed Central by their authors. Between April and June of this year, that figure climbed to 56%.

The Conyers bill doesn’t have “legs,” as they say inside the Beltway— meaning that there’s no way that it will see enactment by lawmakers during this Congress. But in the unpredictable world of Capitol Hill politics, it’s clear that this issue isn’t going away anytime soon.

Full disclosure: Nature America is a member of AAP.