RE: FW: commercial crimes -- & NIH?

["David Goodman" <David.Goodman@liu.edu>]

We now see the true light: the NIH is convinced that it is  "engaging in R&D
primarily for agency needs."

This is not the case. The NIH engages in R&D to meet public needs, and would
never have been funded otherwise.  The grantees do not work to help the NIH;
the NIH exists to support the grantees.  Even for a narrowly focused contract,
the R&D is at  least in principle being done ultimately for the public benefit,
not the benefit of the sponsoring organization.  That's the difference between
the public sector and the commercial sector. It sounds like Bonnie has confused
the two.

The NIH policy on intellectual property must similarly be designed primarily for
the public benefit. As far as its internal needs go, throughout the 50-year
history of the NIH, those grantees who did not publish did not receive further
grants, and this was without PMC.

The policy on copyright  may conceivably have  been needed when the system of
federal research support was instituted. Given the technological change in
scientific publishing, to continue it now is most certainly a mistake. That's
why such matters are dealt with by regulations and not laws--so they can be
more readily adapted to meet such developments.

Peter has become so used to this practice that he now regards the ownership of
the prime intellectual property in his area of science to belong to his own
organization. There is no question but that that the NIH has the right to
provide its Public Access. The agency has the right to provide much more than
that. It has the right and the power --and I would say the obligation-- to
require that work it funds be published, and with the copyright remaining in
the public domain.

I, like other OA advocates, initially supported the NIH because we hoped that
the result would be sufficiently close to true OA.  I, like some other
advocates of OA, deeply regret the initial enthusiasm for a system that in
actuality offers the public so little.

Dr. David Goodman
Associate Professor
Palmer School of Library and Information Science
Long Island University
dgoodman@liu.edu

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu on behalf of Peter Banks
Sent: Wed 11/23/2005 3:56 PM
To: BKlein@DTIC.MIL; liblicense-l@lists.yale.edu
Subject: Re: FW: commercial crimes -- & NIH?

"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