publisher copyright agreements routinely violate federal regs

[Samuel Trosow <strosow@uwo.ca>]

Sally Morris wrote:

> I don't believe it's fair to say that publishers are by any means abusing
> the system;  pretty much all, I would say, are well aware of the different
> copyright arrangements for Government works in various countries, and deal
> with these entirely correctly - where they don't, I would suspect
> ignorance rather than anything worse.  The situation has various
> complications, however:
As I've argued before with respect to works resulting from federally
subsidized researh, the federal government retains various non-exclusive
rights with respect to the work (OMB Circular A-110, section 36 and
various Code of Federal Regulations provisions, such as 45 CFR �74.36)

Specifically, section 36a of OMB Circular A-110 says:

"The Federal awarding agency(ies) reserve a royalty-free, nonexclusive and
irrevocable right to reproduce, publish, or otherwise use the work for
Federal purposes, and to authorize others to do so."

and section 36(c) says

"The Federal Government has the right to:

(1) obtain, reproduce, publish or otherwise use the data first produced
under an award; and (2) authorize others to receive, reproduce, publish,
or otherwise use such data for Federal purposes."

When a publisher requests an exclusive right (or otherwise seeks the
entire bundle of rights in the copyright) they are acting in derogation of
this reserved right.  I highly doubt that the large publishers are
"unaware" of these provisions.

It doesn't matter which of the two surveys discussed on this list you want
to use. It is abundantly clear that most publishers demand exclusive
rights as a condition for accepting the work for publication.

So again, I make the claim that publishers routinely violate these
provisions when they seek exclusive rights because the original author
really does not even have exclusive rights to grant away in the first
place because of the express reservation. A grant of a non-exclusive right
is appropriate, a grant of exclusive rights is not. So yes, I do think
that many publishers ARE abusing the system. Unfortunately, the federal
agencies have not enforced these provisions which is one of the reasons
why I think additional Congressional action (i.e., the Sabo Bill) is
warranted at this time.

Could a publisher who seeks exclusive rights from authors please explain
why they continue to do this? Are you unaware of these provisions? Or am I
misreading these provisions?

Samuel Trosow
University of Western Ontario