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Re: FW: commercial crimes -- & NIH?
- To: <BKlein@DTIC.MIL>, <email@example.com>
- Subject: Re: FW: commercial crimes -- & NIH?
- From: "Peter Banks" <firstname.lastname@example.org>
- Date: Wed, 23 Nov 2005 15:56:38 EST
- Reply-to: email@example.com
- Sender: firstname.lastname@example.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: email@example.com >>> 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: firstname.lastname@example.org; email@example.com 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 firstname.lastname@example.org