Re: FW: commercial crimes -- & NIH?

["Peter Banks" <pbanks@diabetes.org>]

"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."

I think  most publishers would agree the NIH has those three legitimate
objectives--at least those who attended a meeting Dr. Zerhouni in late 2004
did. We  expressed our desire to help NIH meet those objectives, and would do
so today. But none of the objectives requires a public archive, which is well
beyond what could be construed as a legitimate "government purpose."

Yes, the monitoring and preservation of research output are not government
intrusion into publishing--but an open archive is. It will certainly be a
strange twist when a Republican Congress, supposedly dedicated to free
enterprise and the promotion of private industry, decides to declare war on the
nonprofit and for-profit publishing industry. (Where's Grover Norquist to expose
the madness? For once, he could actually do something useful!)

Peter Banks
Acting Vice President for Publications/Publisher
American Diabetes Association
Email: pbanks@diabetes.org

>>> BKlein@DTIC.MIL 11/18/05 2:31 PM >>>

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