RE: publisher copyright agreements routinely violate federal regs

["R. James King" <jamesk@library.nrl.navy.mil>]

The nice thing about the federal regulations is that even if a Federal
employee signs a document transferring copyright to a publisher, it is not
valid because the Federal author has nothing to transfer.  Now, in defense
of publishers, many of them (including Elsevier) already include a special
block on the copyright transfer form that basically acknowledges that this
is a Federal government work and is not subject to copyright.

Unfortunately, this does not result in the removal of the copyright notice
on the article nor does it result in the publicly accessible notice on the
article.  I'm sure that publishers are aware that if they tagged all of
the articles that were directly written by Federal employees or
significantly sponsored by Federal dollars, it would affect their revenue
and make a big impact on document delivery firms.

How do you identify all of the works created by Federal employees?  How do
you ensure that the rights statements are transferred with it? I know
there are several projects out there that are looking at a rights language
but I don't think anything is ready for this kind of scale.  I don't think
anyone is really taking advantage of this yet because it requires a
complete identification of all works created by Federal employees and a
distinguishing of works produced by government contractors (who can retain
some rights depending upon the terms of the contract) and co-authors that
are not Federal employees (who can also retain rights).  This requires an
Institutional Repository (like dSpace) with a retrospective collection of
historical work.  This will obviously take a long time to accomplish and
cost a lot of money.

After researching this issue for the past couple years, I feel that I'm
clearly within my rights to redistribute Federally-created work within the
Federal government ('for Federal purposes'), and most likely within my
rights to redistribute jointly produced works within the government.  I do
not want to deal with the hassle of making Federally-produced or sponsored
works available to the general public because I do not have that kind of
infrastructure.  Possibly a place like NTIS would be a better place for
this (though they have to charge something to cover their costs).  The
Federal Government is also faced with the non-competition angle that shut
down the PubScience web site so the Government has to clearly show Federal
purpose.

-James
Chief Librarian
Naval Research Lab

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
Sent: Friday, September 12, 2003 6:41 PM
To: liblicense-l@lists.yale.edu
Subject: publisher copyright agreements routinely violate federal regs

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