Re: AAP/PSP Open letter to Dr. Zerhouni (NIH) -Gov Info

[Liblicense-L Listowner <liblicen@pantheon.yale.edu>]

Forwarded from cni-copoyright list, as related to exchanges on 
liblicense-l.

---------- Forwarded message ----------
Date: Mon, 30 Aug 2004 17:15:30 -0400
From: "Klein, Bonnie" <BKlein@DTIC.MIL>
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
    <CNI-COPYRIGHT@cni.org>
Subject: [CNI-(C)]  Re: AAP/PSP Open letter to Dr. Zerhouni (NIH) -Gov  Info

I'd like to direct your attention to the "CENDI Frequently Asked Questions
About Copyright" http://www.dtic.mil/cendi/publications/04-8copyright.html
Section 4: WORKS CREATED UNDER A FEDERAL CONTRACT OR GRANT 4.3 If the
Contractor is Allowed to Assert Copyright in a Work Produced Under a
Government Contract, What Rights Does the Government Have?

The Government's license is a nonexclusive, irrevocable, worldwide license
to use, modify, reproduce, release, perform, display or disclose the 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 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 to a publisher are subject to these rights."

Most STI publisher copyright transfer agreements recognize the U.S.
Government's license in contracted works.  For unequivocal clarification,
what needs to be added to the Federal Acquisitions Regulation (FAR),
Defense Supplement (DFARS) and copyright transfer agreements is the
government's right to "use, modify, reproduce, release, perform, display
or disclose" contractor or grant works AS PUBLISHED.

Regarding government information management, the Interagency Committee on
Government Information (ICGI) http://www.cio.gov/documents/ICGI.html which
was created in June 2003 to implement Section 207 of the EGovernment Act
of 2002 (Public Law 107-347, 44 U.S.C. Ch 36) has an extensive and
ambitious agenda to draft recommendations and share effective practices
for:

	Access to federal government information. 
	Dissemination of federal government information.
	Retention of federal government information. 

The Electronic Records Policy Working Group under the leadership of the
National Archives and Records Administration was asked to consider a
recommendation that Government archive journal articles and conference
papers which result from government funding.

CENDI is an interagency working group of senior Scientific and Technical
Information (STI) Managers from 12 U.S. federal agencies.  These programs
represent over 96% of the FY04 federal research and development budget and
have long served as Government "institutional repositories."

Bonnie Klein
Technical Reports Team Lead & Chair, CENDI Copyright Working Group
Defense Technical Information Center


-----Original Message-----
From: Stevan Harnad [mailto:harnad@ecs.soton.ac.uk]
Sent: Monday, August 30, 2004 12:45 PM
Subject: Re: AAP/PSP Open letter to Dr. Zerhouni (NIH)

On Mon, 30 Aug 2004, Richard Poynder wrote:

>> Ann Okerson wrote:
>> Copyright: I've wondered how US legislation will be rewritten, as it
>> would need to be.  At this point, Section 105 of the US Copyright Act
>> declares that the created work of government employees on government
>> time is in the public domain.  In this case, Section 105 language will
>> need a significant adjustment: (1) either government funded work, even
>> when not performed by government employees, will be "government work" by
>> definition; or (2) private researchers, when working under government
>> funding, become at that time government employees.  (This is a variant
>> of the Martin Sabo bill of last year, showing up in a different way.)  
>> The legislation would need to be clear both when the articles come into
>> the public domain and that authors' moral rights are being retained even
>> as the other basic rights of copyright would not be.  (I think this kind
>> of legislation could be a real issue for institutions benefitting from
>> government funding -- universities, for example.)
>
> I wonder if a change in copyright legislation would indeed be necessary.
> Is not the recommendation simply that the published output of all
> NIH-funded research be archived in PMC? If so, does this inevitably mean
> that the research has to be formally placed into the public domain, or
> that the authors (or their institutions, or the publisher, or whoever the
> copyright is vested in) will have to give up copyright? Perhaps a more
> flexible approach would be to utilise some form of Creative Commons
> licence?

I agree with Richard Poynder. OA is not about about changing copyright
legislation; it is about providing immediate, permanent, toll-free
full-text online access webwide (aka, Open Access, OA).

And the House/NIH recommendation is not about changing copyright
legislation but about mandating that the fundee must provide OA for all
NIH-funded research, by self-archiving all resulting journal-article
full-texts toll-free online.
http://www.arl.org/sparc/core/index.asp?page=o31

The one small thing that needs to be amended in the eventual US Bill is
that it should not stipulate that the self-archiving *must* be in PMC. All
that is necessary is to mandate that every article must be self-archived
in an OAI-compliant OA archive. All OAI-compliant OA archives are
interoperable. http://www.openarchives.org/

Hence it does not matter which OA archive contains the article; it is as
if they all did. Moreover, the interoperability means that their metadata
(author, title, journal, date) are all harvestable, so PMC too can harvest
the metadata of all NIH-funded in OAI-compliant OA archives automatically
(or can even stipulate that the researcher must deposit the article's
*metadata* in PMC directly).
http://archives.eprints.org/eprints.php?action=browse

But the full-texts themselves need not be self-archived in PMC, and it is
in fact preferable that they should be self-archived in the author's own
institutional OA archives, as stipulated by the UK's recommended
legistlation.
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/3990
3.htm

This small but important amendment will then allow the US self-archiving
mandate to propagate naturally beyond the NIH mandate's remit (NIH-funded
biomedical research) to all research output, in all of each institution's
disciplines. http://www.eprints.org/signup/sign.php

The amendment will also prevent it from running needlessly counter to
publishers' concerns about authorizing 3rd-party self-archiving (hence
potentially authorizing free-riding 3rd-party rival-publishers).
Ninety-two percent of the nearly 9000 journals sampled to date (including
all of the core journals) have given their green light to author
self-archiving, but a number of publishers specify institutional rather
than central self-archiving. http://romeo.eprints.org/stats.php

Stevan Harnad

See:

    "Public Access to Science Act (Sabo Bill, H.R. 2613)"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/2977.html

    "Central versus institutional self-archiving" (Aug 8)
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3905.html

    "AAU misinterprets House Appropriations
    Committee Recommendation" (Aug 3)
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3892.html

    "Re: Mandating OA around the corner?"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3851.html
    http://www.ecs.soton.ac.uk/~harnad/Temp/UKSTC.htm