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FW: commercial crimes -- & NIH?
- To: "'email@example.com'" <firstname.lastname@example.org>
- Subject: FW: commercial crimes -- & NIH?
- From: "Klein, Bonnie" <BKlein@DTIC.MIL>
- Date: Fri, 18 Nov 2005 14:31:41 EST
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- Sender: firstname.lastname@example.org
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: email@example.com; firstname.lastname@example.org 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 email@example.com -----Original Message----- From: firstname.lastname@example.org on behalf of Klein, Bonnie Sent: Thu 11/17/2005 5:38 PM To: 'email@example.com' 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