RE: FW: commercial crimes -- & NIH?

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

Dear Bonnie,

I am glad to hear your interpretation that " NIH is exercising its right 
through the government's license to make both works done under contract 
and grant publicly available."

Whether the way in which this is being done is appropriate, rather than 
excessive or inadequate, is not yet known. This has not stopped many 
(including myself) from discussing the question repeatedly-- but I think 
all would be agreed that at least the principle of public access has been 
established.

We also agree, as a historical fact, that the current rule is the outcome 
of "a compromise was forged in which the contractor or grantee retains 
title to the IP, but the government gets a license. "

I think it time to alter the terms, which as you point out, are matters 
set only by regulation. (The formal statements may differ, the practical 
effect for our present purposes is the same for work done under contract 
or under a grant. I've worked under both-- the paperwork and application 
process is not identical, but the effect of the individual is. )

(I note that the contractor or grantee is rarely an individual, but 
instead an organization of some sort although in general discussion, 
"grantee" is often used as a synonym for the Principal Investigator. ( 
P.I.)

For copyright at least, the regulations are no longer appropriate to the 
actual conditions of science publishing. It is not the contractor or 
grantee nor the P.I.  who actually retains the copyright, but in the 
practical world, all must give the rights to a publisher in exchange for 
publication.

I've read the regulations, too, and I have for long thought that a very 
simple change in them would force a solution to the whole problem. The 
copyright need only reside inalienably with the 
contractor/grantee/P.I./authors, who would be only authorized to give 
another organization no more than an non-exclusive lichens, in addition to 
the required government use license.

I'm not sure just how the publishing system would adapt, but it would.

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 Klein, Bonnie
Sent: Sun 11/27/2005 4:34 PM
To: 'liblicense-l@lists.yale.edu'
Subject: RE: FW: commercial crimes -- & NIH?

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