RE: New US Bill re. Copyright/Federal Funding

["Klein, Bonnie CIV DTIC O" <BKlein@dtic.mil>]

Generally, U.S.Government contract and grant agreements do not 
require researchers to transfer copyright to the Government. The 
Federal Acquisitions Regulations and the Defense Acquisitions 
Regulations Supplement provide terms for the allocation of 
intellectual property rights. The contractor or grantee usually 
retains copyright and the Government gets a license. The 
Government's license is a nonexclusive, irrevocable, worldwide 
license to use, modify, reproduce, release, perform, display or 
disclose the 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 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 to a publisher are subject to these 
rights.

Most major STM publishers have long recognized the Government's 
pre-existing license and provide a place on their copyright 
transfer forms for authors to indicate that an article describes 
the results of Government-funded research.  In absence of such a 
clause, authors are responsible for informing publishers about 
the Government's data rights in their work and for negotiating 
publishing agreements to reflect that. Given this notice, the 
publisher has the choice of accepting or rejecting the article 
for publication.

In the 70s, publishers made similar dooms-day arguments about the 
effects of NIH photocopying and interlibrary loan on the 
publishing industry.  None of their dire predictions have come to 
pass.  The industry is stronger than ever, but in need of a new 
business model as author's and funding organizations assert their 
rights to control their works.

Note that it is not the authors, academic or research 
institutions or the Government seeking a change to the copyright 
law, but an industry that is slow to adapt.

Bonnie Klein

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Okerson, Ann
Sent: Monday, September 15, 2008 8:48 PM
To: liblicense-l@lists.yale.edu
Subject: New US Bill re. Copyright/Federal Funding

The excerpt below comes from LJ Academic Newswire, September 
12th.  I'm having some difficulty understanding the full 
rationale behind this bill - apart from the intention to weaken 
the NIH (or other) deposit requirement.  I'm NOT a fan of 
mandates - though one of my former bosses used to proclaim: "s/he 
who has the gold makes the rules."

And I understand publishers' concerns; but how does this bill 
"protect the rights of *authors,*" who don't seem here to be 
complaining about a loss of rights?

Is there someone out in liblicense-l land who can provide a 
simple explanation?  Thank you, Ann Okerson

________________________________________

New Bill Would Forbid Copyright Transfer as a Condition for
Federal Funding

The public access battle lines have been redrawn: if passed, the
Fair Copyright in Research Works Act (HR 6845), now officially
introduced, would essentially bar agencies of the federal
government from requiring the transfer of copyright, whole or in
part, as a condition for receiving public funding. The pending
legislation was the subject of a congressional hearing today, as
first reported by LJ late last week. The text of the brief, but
sweeping copyright bill, first posted yesterday afternoon on the
Public Knowledge blog, proposes that: "No Federal agency may, in
connection with a funding agreement, impose or cause the
imposition of any term or condition that requires the transfer or
license to or for a Federal agency any right provided under
copyright law."

That means, if passed, measures like the recently enacted NIH
public access policy, which requires investigators who accept
taxpayer funds to deposit their final papers in the PubMed
Central repository and give the agency a non-exclusive right to
offer free access within a year, would be prohibited. It was
unclear, however, if the bill would directly affect the current
NIH policy, as the bill appears to apply to future policies. In
its first statement since LJ broke the news of the pending bill,
introduced after months of heavy lobbying from publishers,
officials at the Professional and Scholarly Publishing (PSP)
Division of the Association of American Publishers (AAP) praised
the measure as protecting "the rights of authors and publishers
of copyrighted, peer-reviewed scientific journal articles." The
NIH policy, the statement said, forced publishers to "surrender
their peer-reviewed scientific journal articles, without
compensation, for worldwide online distribution."

[SNIP]

*****