“it isn’t appropriate for the federal government to use publishers and their peer reviews as a quality-control mechanism, outsourcing work without payment.”

The statement is also not true. Taxpayers pay dearly. When it comes to academic publishing, publishers spend millions, taxpayers spend billions:

1. Taxpayers subsidize the research. The federal government is the single largest source of research funding, spending around $50 billion. States add another ~$8 billion. NIH alone spends $30 billion. Federal, state and local tax incentives also subsidize private research.

2. Taxpayers subsidize journals’ labor. Publishers don’t pay authors, editors, or reviewers. These academics are the people who do the actual work of quality control, and they work for free. Publishers get this free labor because institutions of higher education pay the academics a salary. Federal, state, and local taxes give those institutions hundreds of billions of dollars each year.

3. Authors pay publishers to be published. The authors’ payments to the publisher are frequently made by the taxpayer-supported academic institutions.

4. Taxpayers subsidize the purchase of journals. Publishers sell to large, tax-subsidized academic institutions.

5. Tax breaks subsidize non-profits which pay for original research and journal administration. For example, the American Heart Association funds original research, runs 5 journals, and is a 501(c)3 tax exempt organization. By the way, the AHA, not the publisher, pays for the administration of its peer review process.

Taxpayer contributions dwarf the publishers’ costs. How much do publishers pay for publication and peer review? The Professional/Scholarly Publishing division of the American Association of Publishers, claims “hundreds of millions”. That is, less than a billion. And with total revenues of $7-8 billion (according to the PSP), publishers couldn’t begin to foot the research bill.

Academic publishers are only profitable because taxpayers spend billions subsidizing them.

“… [NIH is] appropriating the expertise, scholarship and credibility that publishers have established over the years, in some cases over more than a century. That would seem to be of some value; if it wasn’t, NIH wouldn’t be taking it.”

Academics, not publishers, have the credibility and expertise. Academics create the scholarship – they do all the writing, editing, and reviewing.

Peer review is done primarily by academics, not publishers. Academics assign articles to reviewers, review the articles, submit detailed technical critiques, review revisions and resubmissions, and make the decisions on which articles to publish. Academics have the years of highly specialized education and training. When it comes to peer review, publishers are more like middle management.

Frankly, a lot of that middle management can be and is handled by software. And physical journals with their long turn around times are ill-suited for writing which is valuable for its novelty. Electronic is faster and cheaper. We shouldn’t write copyright laws to preserve inefficient and outdated systems.

Fair enough. By the same token, the publishers should be more than willing to fund research in-house instead of freeloading off the taxpayers.

“You may welcome that, but I would think many in the scientific community would be troubled. We have seen how politicized science can become. Do we really want an administrative agency determining what is good science?”

By the very granting of the funding, the agency has already made that call, so what you imply is that the government shouldn’t be in the business of handing out research grants at all. There are many compelling arguments to be made in that direction, but I suspect it is outside our scope here.

“What we see here is that NIH is appropriating without permission more than just the peer review process. They are appropriating the expertise, scholarship and credibility that publishers have established over the years, in some cases over more than a century. That would seem to be of some value; if it wasn’t, NIH wouldn’t be taking it.”

Perhaps, but “expertise, scholarship and credibility” are not property in any meaningful sense, copyright, tangible, or otherwise. It may have value, but in this case “appropriating” is is clearly not theft.

What we do see here is the publishers appropriating taxpayer-funded work without any clear return (forcing the taxpayers to pay again to read doesn’t count). That *is* theft.

Name one scientific publisher who’s been put out of business by the NIH policy.

“Peer reviews cost the publisher very little, if anything.” Let’s assume there are no costs in time, effort or money in the peer review process. If that is the case, it makes no sense for NIH to outsource that valuable service against the publishers’ will. They should do it in-house.

NIH could encourage all scientists who received a portion of their funding from NIH to submit papers directly to the agency. The agency could conduct these costless peer reviews and post the papers. Then there are no copyright concerns for publishers because they’re not in the loop.

You may welcome that, but I would think many in the scientific community would be troubled. We have seen how politicized science can become. Do we really want an administrative agency determining what is good science? Do we want peer review established and supervised by a government agency that, like any government agency, is subject to regulatory capture by special interests?

What we see here is that NIH is appropriating without permission more than just the peer review process. They are appropriating the expertise, scholarship and credibility that publishers have established over the years, in some cases over more than a century. That would seem to be of some value; if it wasn’t, NIH wouldn’t be taking it.

You may support the ends — more works available for free other than having to read them at a library — but the means are very troublesome.

What about the publishers who pay nothing for the content? Who is the free-loader now?

Peer reviews cost the publisher very little, if anything. All reviews are performed by volunteers and usually even the editing and coordinating is volunteer work. The publishers have a role, to be sure — distributing the content is not free, but the original NIH policy allowed room for the publisher to recoup these costs. In fact, it is not unusual for the author to have to pay to have the work published (IEEE requires this).

If the publishers don’t want to be beholden to open-access rules, they are free to not accept federally-funded work. The market will sort that out.

You’re attacking a strawman – no one has advocated this, least of all NIH. As Lessig and Eisen’s article said, even the publishing houses generally put the papers up on the web after some time has elapsed. You’re suggesting that if delayed free access is good, immediate free access is better, which is not necessarily true. Naturally, neither you nor Chairman Conyers actually responded to Lessig and Eisen’s argument that the current system, in which you can pay for early access but the public eventually gets the benefit of their tax dollars, strikes a fair balance and works fine. Do you have data that suggests otherwise? Obviously not.

And although I know you are shocked, shocked, that anyone would accuse a powerful and long-serving Congressman of having been influenced by campaign donations – come on, Patrick. It’s reality. And it doesn’t make Conyers a criminal, it makes him a human being. And it’s completely fair to point out, especially when the Congressman can’t seem to come up with a rational explanation for his position.