FW: commercial crimes -- & NIH?

["Klein, Bonnie" <BKlein@DTIC.MIL>]

There is underlying legislation and Congressional oversight that defines
and drives federal agency policy, regulations and operations.

When engaging in R&D primarily for agency needs, agencies use procurement
contracts (15 USC). Grants are used to stimulate and assist for a public
purpose, and, to that end, the government requires the results be made
public. In general, the government approach to IP developed by contractors
or awardees is that the private party retains title to the IP, and is
primarily responsible for "commercialization" or other dissemination of
the materials.  The Government receives a LICENSE to use, reproduce,
modify, disclose the information the work for government purposes and
authorize others to do so. (Schnapper v. Foley, 667 F.2d 102 (D.C. Cir.
1981), cert. denied, 455 U.S. 948 (1982).

Open Access is different than the NIH approach of Public Access.  Let me
reiterate, the government contractor or grantee retains IP rights and
grants the Government a non-exclusive license. These works are NOT in the
public domain.
 
It is a leap/non-sequitur to equate the government's contractual
rights/license to disseminate the documented results of R&D it funds to
government regulation of science or publishing.  The NIH policy is not
just about public access.  Government agencies are held accountable for
and measured by the effectiveness of their products and outputs.  They
need to know/show what those are, they need to manage them for their own
and other government purposes, and they need to preserve them for the
future.

Bonnie Klein

-----Original Message-----
From: David Goodman [mailto:David.Goodman@liu.edu] 
Sent: Friday, November 18, 2005 8:12 AM
To: liblicense-l@lists.yale.edu; liblicense-l@lists.yale.edu
Subject: RE: commercial crimes -- & NIH?

As Bonnie reminds us, the ability to copyright government sponsored works
is based not on the constitution, not on legislation, but merely on agency
regulations. When the system of government support for research was
greatly extended during and after WW II, it could equally have been
arranged that the entire intellectual property of any such work would
reside with the government.

It wasn't, though it yet might be, and more likely the present definitions
specified .  could easily be extended.  At the very least, the better
performance of work being paid for by US Government grants or contracts is
an obviously governmental purpose, as would work being performed within a
government laboratory.  The education of students whose tuition is
supported, even in part, by federal fellowships or grants, or federally
guaranteed loans, would seem equally apparent. Conceivably any subsidy
would be enough, such as the deductibility of educational expenses or of
research.  The mere fact of being affiliated with an institution that
receives any benefits from the government might be enough. It might extend
to all work published together with federally sponsored work, or even by
the same publisher as it is clearly easier to disseminate the government
work if the entire journal or group of journals is disseminated OA.

Other cases, such as military recruiting, would support that such an broad
interpretation might well be supported by the courts.

Bonny suggests that those opposed to the present plan of required OA to
recognize how a much stronger form of OA could have been required, and yet
might be. I suggest that those opposed to o required OA to consider also
what the general regulations could have been. I'd think it prudent in
their position to develop into enthusiastic supporters. Had they been more
liberal in the first place, it would not have become necessary to compel
them.
 
I am myself opposed to government regulation of scientific or other
publishing.  Because I am so much opposed to it, I recommend that It would
be much better for all concerned to recognize the world-wide public
benefit of OA, and devote their abundant energies to finding ways to
establish OA on a sound financial basis.

Dr. David Goodman
Associate Professor
Palmer School of Library and Information Science
Long Island University
dgoodman@liu.edu


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu on behalf of Klein, Bonnie
Sent: Thu 11/17/2005 5:38 PM
To: 'liblicense-l@lists.yale.edu'
Subject: RE: commercial crimes -- & NIH?
 
Most savvy publishers understand contract law and include a section in
their copyright transfer agreements specifically for US Government
Contractors and Grantees to acknowledge Government sponsorship.  These
clauses recognize the Government's prior rights license.

The Federal Acquisitions Regulation (FAR) and OMB Grants guidance
stipulate that awardees give the Government a nonexclusive, irrevocable,
worldwide license to use, modify, reproduce, release, perform, display or
disclose their work by or on behalf of the Government. The Government may
use the work within the Government without restriction, and may release or
disclose the work outside the Government and authorize persons to whom
release or disclosure has been made to use, modify, reproduce, release,
perform, display, or disclose the work on behalf of the government.

The Government's license includes the right to distribute copies of the
work to the public for government purpose. While the contractor or grantee
may assign its copyright in "scientific and technical articles based on or
containing data first produced in the performance of a contract" to a
publisher, the Government's license rights attach to the articles upon
creation and later assignment by the contractor or grantee to a publisher
are subject to these rights.

Where there seems to be a difference of opinion is what constitutes a
government purpose. Be advised it is the prerogative of Government
agencies and Congress to define what that is based on mandate and mission.

In 2004 the US House Appropriations Committee directed NIH to provide
"free and timely access to the published results of all NIH-funded
biomedical research." In deference to publishers, NIH has been very
conservative in its approach of voluntary compliance.  This is subject to
change depending on how the US House Appropriations Committee views the
success of the program based on a progress report due Feb 2006.  Stayed
tuned.

Bonnie Klein