The ease of hosting material on the Web is radically changing the publishing industry, and its effects on scientific publishing have been dramatic. A number of open access journals have been established, and many traditional journals have started offering the authors of the papers they publish the option of making their material open access for a fee. The National Institutes of Health, which funds the majority of biomedical research in the US, has encouraged open access to the research it pays for, and Congress eventually mandated an open access policy as part of the NIH's funding. But, for the second year running, a group of Congressmen have introduced a bill that would overturn the effort.

We described the genesis of the NIH policy in detail before. In short, researchers typically have to sign away their copyright to the papers resulting from NIH funding when they appear in a commercial publication. To improve the access to the research it funds, the NIH requested that scientists hand a copy of the papers over within a year of publication; the agency would then host it online, where the public and other researchers could access it. The voluntary policy, however, wasn't a rousing success, as researchers either neglected to send in the papers, or weren't sure about any copyright issues doing so presented.

As a result, Congress eventually made the policy mandatory; any papers resulting from NIH-funded research had to be turned over for open access hosting a year after publication. Publishers, however, objected, viewing the policy as a threat to the value they could extract from copyrighted publications. Their objections, in part, eventually led to the introduction of a bill that would roll back the NIH policy, which allowed the House Judiciary Committee to hold hearings on it last year.

In reporting on that testimony, it was clear that there were issues that went well beyond any threat to the scientific publishing industry created by the mandatory open access policy. Both witnesses and members of Congress suggested there were a huge range of concerns; a general mistrust of government involvement in markets, worries about the general fight over intellectual property, and Congressional turf battles all featured. The hearings also made clear that many committee members had some significant gaps in their knowledge of scientific publishing.

Ultimately, however, that bill never made it beyond those hearings. That hasn't, however, stopped its sponsor from trying. John Conyers (D-MI) has reintroduced the bill in this year's Congress. The fact that the bill's cosponsors are all members of the Judiciary Committee adds credence to our earlier impression that a Congressional turf battle was threatening an NIH policy that the Institutes' former director, Elias Zerhouni, felt was a major success. It turns out that the Judiciary Committee feels that the open access policy is an intellectual property issue, but they weren't consulted because the change in policy was enacted as part of a budgetary decision.

Unfortunately for open access fans, this year's bill seems to present a greater threat to the NIH's policy. For one, Congress is distracted by other issues, which might allow a minor amendment to a funding bill to slip through unnoticed. In addition, Zerhouni gave a strong defense of the open access policy on scientific grounds at last year's hearings; he's since stepped down and, with Tom Daschle withdrawing his nomination, it's not even clear when a new head of Health and Human Services will be named; until that position is filled, there won't be a new NIH chief named.