RE: American Physiological Society - Comments re. NIH Proposal

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

Thank you ATA and Michael Carroll, How refreshing to hear from folks who
get it!

The NIH/NLM proposal has less to do with copyright law and everything to
do with contract law.  The Government is finally asserting the license
rights it has always had under the provisions of the Federal Acquisitions
Regulations and OMB guidance.

The Government's agreement is with the grantee or contractor, not the
publisher.  While the contractor or grantee may assign their 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.
The Government's license includes the right to distribute copies of the
work to the public for government purpose.

Most publishers are aware of the Government's license and some acknowledge
it in their copyright assignment agreements.

For example, the IEEE Computer Society in its Copyright Information Form
http://www.computer.org/forminfo.htm states: In the case of work performed
under a U.S. Government contract or grant, IEEE recognizes that the U.S.
Government has royalty-free permission to reproduce all or portions of the
above work, and to authorize others to do so, for official U.S. Government
purposes only*, if the contract/grant so requires." *(My note: It is the
prerogative of Government agencies to determine and define "official
government purposes" in the context of their mission and policies).

So too does the American Geophysical Association Copyright Agreement
http://www.agu.org/pubs/Copyrght.pdf recognize the Government's "prior
license to use the work (done under grant or contract) for noncommercial
purposes."

Not surprisingly, the American Physiological Society Mandatory Submission
Form which includes a copyright transfer agreement is silent on Government
rights in US Government contracted or grant works.
http://www.the-aps.org/publications/pg/pgmsf.pdf

Bonnie Klein