RE: FW: commercial crimes -- & NIH?

["Klein, Bonnie" <BKlein@DTIC.MIL>]

David,

You've misinterpreted my posting.

NIH or any other federal agency "engaging in R&D primarily for agency 
needs" funds this work under CONTRACT.  Check FedBizOps and you will see a 
variety of agency Requests for Proposals (RFP) for basic and applied 
research. The Public may or may not receive a direct and immediate 
benefit.  In this respect, research done under federal contract parallels 
the commercial sector.  Generally, under FAR/DFARS rules and terms, the 
agency has a government purpose license to work produced by the contractor 
in performance of the contract.

Federal grants are different than contracts in that their stated purpose 
is to stimulate a public good. Under OMB regulations, the government also 
has a non-exclusive federal purpose license to work done under grant.

Whether or not government-funded contract and grant works should be in the 
public domain; i.e., free of intellectual property restrictions, has been 
debated by Congress before and argued in court.  It appears to me that a 
compromise was forged in which the contractor or grantee retains title to 
the IP, but the government gets a license.  NIH is exercising its right 
through the government's license to make both works done under contract 
and grant publicly available.

Bonnie Klein

-----Original Message-----
From: David Goodman [mailto:David.Goodman@liu.edu]
Sent: Friday, November 25, 2005 7:55 AM
To: liblicense-l@lists.yale.edu; BKlein@dtic.mil;
liblicense-l@lists.yale.edu
Subject: RE: FW: commercial crimes -- & NIH?

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