Welcome

Ms. Herbst, CENDI Chair, opened the meeting at 9:10 am. She welcomed everyone to the Herbert C. Hoover Building of the Department of Commerce

INTELLECTUAL PROPERTY AND OPEN GOVERNMENT INITIATIVES

The CENDI copyright activities began as a task group in 1997. Interest and issues related to copyright and intellectual property (IP) continued and even increased so that in 2001 the task group became a working group. The work continues with the support and active participation by the agency attorneys.

This session came about as a result of issues that arose from presentations at the May meeting regarding Data.gov and other open government initiatives. It became apparent that, as agencies participate in these initiatives, they need to be cognizant of intellectual property issues that might arise. Therefore, the members requested an IP refresher from the Working Group.

To set the context, Ms. Klein reviewed key documents from the Administration about the Open Government Initiative. While some of these documents discuss the other information policies such as the Paperwork Reduction Act and 508 Compliance, there is no mention of IP. There is a recommendation to apply a Creative Commons License Waiver of Copyright/Public Domain tag to government material, but doing so would contribute to the widely-held misconception that all government information is free from IP protection.

 As agencies decide how to share information more widely, they need to ensure that they have the appropriate IP rights. If those rights aren’t transferrable, the agencies need to make the public aware of what they can and can’t do with the information.

Ms. Klein then introduced the attorneys and thanked them for their participation in the working group and in the morning’s program.

Ms. Jennings highlighted the importance of the Copyright FAQ to government staff, including lawyers. She thanked Bonnie Klein and CENDI for this product, which is used by government attorneys as well as their clients.

Copyright is based on originality and is attached when information is fixed in a media. The basis for Copyright Law is Article 1, Section 8 of the Constitution which gives Congress the power to promote science and the useful arts through copyright. USC Title 17 seeks to strike a balance between two social benefits, uninhibited knowledge transfer, and maintaining the incentives for producers to continue to produce.  It deals with aspects of copyright such as fair use, ownership, and infringement. Case law has also impacted copyright. For example, Disney lobbied to extend the term from 14 to 100 years plus the life of the author.

In the early days of print, publishers controlled the content. The original Copyright Laws sought to curtail this practice by giving a series of bundled exclusive rights to the author. We still see this tension between publishers and authors, caused by technology.

Copyright infringement is what we are concerned about. Infringement is a violation of the rights of the copyright holders. The owner must prove that the work is copyrighted and that the new product is substantially similar to the copyright work. It is determined by how badly the second product infringes on or damages the first. The owner must also prove monetary damages or make a claim for statutory damages.

In the U.S., facts cannot be copyrighted but the unique arrangement of those facts may be. She noted that unique arrangement is difficult to achieve, especially if more standardized arrangements are used. Ideas cannot be copyrighted, but their expression can be. Government works are not copyrighted in the U.S. but they may be internationally. Works with expired copyrights are also no longer copyrighted. Public availability does not equal public domain. The lack of marking is an issue because the copyright symbol is not required for a work to be copyrighted.

‘Fair use’ introduced ‘without infringement.’ Each case must be analyzed independently and based on the specific facts of that instance. Ms. Jennings highlighted the Williams & Wilkins Supreme Court Decision of 1975 which involved the copying of journal articles by the National Institutes of Health (NIH). Claiming fair use when the government uses commercial information can be a “sticky” situation. Copyright holders cannot sue to stop the government from doing the activity (enjoin), but they can sue for damages.

U.S. Government Works are defined in 28 USC 1498. Government works are authored by government employees in the course of their official duties. Government works may be copyrighted in foreign countries under the law of the foreign government. Copyrighted works can be assigned to the government, so the government can hold copyright.

Acquiring information from other sectors, including the commercial sector, depends on the agency mission. For example, NGIA generally licenses maps and other information for specific uses and not for public distribution. Some agencies will license commercial information for wider public distribution if it is within their mission. Licensing is an agreement between parties. It is governed by contract law. Licenses often crowd out the fair uses that you could have had under Copyright Law. Terms of service are often implemented as click-through licenses. Agencies provide little information about terms of service. She noted that it is very important to understand the industry sector in which you are working and to discuss the details of any licensing agreement with the communications officer, the procurement officer, and the general counsel.

Ms. Barrow noted that she is speaking specifically about the Defense Federal Acquisition Regulations Supplement (DFARS), which is a supplement to the Federal Acquisition Regulations (FAR). Other agencies, such as NASA, use the FAR.

Unlike government works, works that are acquired by contract are a copyrighted work whether the copyright notice is placed on the work or not. Data is a generic term which applies to both technical data and computer software. Technical data rights are specified rights that the government acquires which indicate how the government can use the technical information that was a deliverable along with the item, component or the process which were ordered and delivered in a research, experimental and/or development contract.  Computer software rights are those rights that the government secures when the government acquires computer software as the deliverable by contract. The government rarely receives the title or copyright ownership to the technical data or the computer software.

In the area of data rights, the DFARS allows for the deliverable to be marked with the copyright notice pursuant to Title 17, Sections 401 or 402, anything more would be a non-conforming copyright marking.  An example of a non-conforming copyright marking is “All Rights Reserved.”  . The DFARS 252.227-7013 and 252.227-7014 require markings and recite the exact marking required on the technical data or computer software delivered to the government.  Marking of the data by the contractor must be done correctly; otherwise, the marking is a “Non-conforming” marking. If the data is left unmarked the government can assume that it has unlimited rights in the data. Ms. Barrow noted that drafts can be an issue because they often are not marked. Contractors can make changes under specified circumstances if the contractor did not provide a marking originally.  It should be noted that a copyright notice (marking) is different from a Distribution Statement.  An Export Control notice may also be found on a deliverable.

There are several kinds of government rights that the government receives, government purpose rights, limited rights, restricted rights, specially negotiated rights and unlimited rights.  Funding of the purchased item, component or process or the computer software is the factor used in determining which data rights the government is entitled to receive unless the data rights are specially negotiated. If the government were to provide all the funding for the development of the item, component or process or computer software, the government receives unlimited rights.  If the contractor were to have developed the data without government funds then the government would have only limited rights in the technical data or restricted rights in the computer software. If the funding were mixed funds; i.e., the funds for development coming from both the contractor and the government, the government receives government purpose rights. If computer software documentation is a deliverable, then the government receives unlimited rights.

She also noted that some software processes and procedures can be patented. DFARS also includes a Special Works Clause.  The Special Works Clause requires an assignment of copyright to the government.

In general, Defense agencies are trying to ensure competition and so they would like to have at least government purpose rights in the data.  Government purpose rights allows for the use of the data for competitive procurement.  Outside uses by a third party (not the owner contractor of the data) must be for government purposes and require the execution of a non-disclosure agreement.

In addition, under most circumstances third party copyrighted works cannot be included in the data by the contractor without permission from the original owner.

DFARS’s data rights clauses have dates, so you must be aware of the dates in order to know which contract clauses apply. Finally, it is also important to look at the funding of lowest level of the item, component or process or computer software delivered; for example, a software module, to determine what rights the government will obtain in the data.

Web 2.0 is a host of technologies that are aimed at dissemination, collaboration, collection of information, and transparency. It is a new way of conveying government information. NASA has a whole laboratory in Second Life and a Facebook-like site called SpaceBook. Astronauts are now using Twitter from space.  FLICKR, YouTube and other sites are proliferating across NASA.

Planning for the introduction of these technologies involves the development of guidance (including etiquette) and governance structures, and the assignment of people to monitor the sites that an agency decides to use. It takes a full-time person to just monitor the NASA HQ Facebook page. There are concerns about disparities of access. It is important to make sure that information either on the page or elsewhere meets the A-130, 508 and Information Quality requirements. There are issues related to the Paperwork Elimination and the Paperwork Reduction Acts. The Office of Management and Budget (OMB) Memorandum addressing linking to sites outside the government and the use of non-government domain names are also relevant.

Intellectual Property is a major area that must be considered. Copyright breaches can be a troublesome issue. Some of this involves contractor material. (The FAR requires that the contractor mark and assert the copyright.) People may also use Creative Commons Licenses to mark their material. Some postings may occur under fair use, if they involve commentary or are for educational purposes. Because government-authored content is generally in the public domain, it is important to review terms with the site provider to ensure that they do not claim to have rights to the material above and beyond those given to any member of the public.

In general, it is best for government agencies to refrain from changing content provided from public input. The agency should have a service-provider type license, which includes clear take-down policies.

Trademarks may also be an issue with Web 2.0 applications, particularly in Second Life. They may occur in links, blogs, and in names. Infringement is not as obvious with trademarks. There is the concept of fair use of trademark, and generally non-commercial uses are allowed.

Social network sites have Terms of Use and Service, which may be provided with a click-through license. Recently, the General Services Administration (GSA) took the lead to negotiate separate terms of service agreements directly the parent service providers that better reflect the government’s policy regime and the law. You can learn more about these at webcontent.gov. These agreements address many important legal issues that are normally not covered, or covered in contravention of federal law.  One example is the recognition of the federal government’s compliance with FOIA.  However, there are still outstanding issues that are not addressed by these terms of service.  There is some debate about whether posts on Twitter are records. NASA recently had its first case where astronauts’ tweets were requested via FOIA.

The special GSA licenses also “grandfather” or supersede the click-through licenses or other previous agreements to which users may have agreed. This is especially helpful because it takes the burden off the agencies of updating or trying to determine what license people may have been working under. The agency provides the service provider with a list of the URLs that are to be included in the license. It is necessary to review all the terms of service from the service provider, because the GSA agreements may not address them all.    

NTIS is best known for its bibliographic database of federal scientific and business information. However, agency services represent about 50 percent of the NTIS.  The bibliographic file is only a part of the mix of products available from NTIS.

Agency Services  (Shannon Burrington) (link to presentation, .pdf)

NTIS offers a variety of services in disseminating, collecting, and archiving information to other agencies. It develops and hosts web sites, manages databases, processes orders, and staffs agency help desks and call centers for federal agencies. In 2006, the Office of Personnel Management (OPM) named NTIS as one of its approved E-Learning Centers. This means that it hosts learning management systems for other agencies. Digitization services are also available for all media types. NTIS also provides paper distribution from its warehouse, translates products, and has partnered with a commercial company to provide 508-compliance.

Most recently, it began providing grants and contract management support for the Broadband USA recovery funding. It just launched the Department of Commerce’s Recovery web site.

Federal Energy Data is a partnership that captures real-time energy data from government buildings and presents it on a dashboard. Federal buildings are required to be metered by 2010; many have energy meters but no way to analyze the data. This dashboard provides third party measurement. It is being piloted with the Architect of the Capitol. Interest has also been expressed by GSA and the National Institute of Science and Technology (NIST).

Product Development (Wayne Strickland)

NTIS has the broad mission of obtaining and maintaining complete and accessible scientific information. Content Development blends product management with the NTIS Technical Specialists to achieve a more integrated environment. The added value that NTIS brings to agency information is the rich metadata. The Product Development staff see the next wave of input as data management.

The National Technical Report Library (NTRL) provides online access to bibliographic records and full text. It is a subscription-based product. The NTRL depth will increase over time as the legacy collection is digitized. The product was launched in April. It is a good way for agencies to check to see that their information has been submitted to NTIS. They have a significant number of large libraries and some government agencies are including the Department of Interior and the Defense Department of Australia as subscribers of NTRL.

In addition to the more traditional databases, NTIS works in partnership to produce other collections. The World News Connection provides online access to newspapers, magazines, and other types of publications, world-wide. The content is translated within 24 hours. The Social Security Administration’s Death Master File lists deaths in the U.S. It has seen heavy use by security agencies, financial and insurance institutions, etc., as the security and fraud concerns have increased. NTIS has moved the file online and is moving toward more frequent updates. The Drug Enforcement Administration’s Controlled Substance Act Database is updated weekly.

NTIS is interested in discussing partnerships with agencies and other organizations including international. In the past, NTIS did a lot of international work, and they still have a large international user base.

The Secretariat shared a slightly modified white paper that it had developed for the transition team with Mr. Koizumi prior to the meeting. He indicated that there is certainly common ground based on what he read. How can we work together to understand how these areas fit with the Administration’s directions?

OSTP is charged with providing science and technology policy advice through the Science Advisor, Dr. John Holdren, and directly to the White House. OSTP is also charged with interpreting the Administration’s direction as it relates to S&T. OSTP is a central focus for science and technology policy. Through the National Science and Technology Council (NSTC) it coordinates the national R&D investment and also manages the President’s Council of Advisors on Science and Technology (PCAST) as the outside advisors to the White House.

OSTP is also taking the lead in Open Government Policies. Technology is a key way to disseminate government information. OSTP’s blog at OSTP.gov is being used to solicit public input on policies such as scientific integrity and declassification of information. This involves letting the public rank ideas and provide input via a wiki.

Mr. Koizumi follows trends in the $150 billion federal R&D investment by agency. The goal is to make intelligent decisions and keep it together. The Administration has had the opportunity to finalize the FY09 budget, enact the Recovery Act money, and propose the FY10 budget this year. These are a lot of moving parts.  Within the basic sciences, they have been looking to translate campaign promises into the budgets of agencies. Several budgets, including those for NSF, NIST and DOE Office of Science, are slated to increase substantially over the next few years.

The broader use of this information is to reorient and reinvest in science-related areas of the economy for the long run. The main priorities are investing in basic science, green science, developing a healthier America, and one that is more secure. The Administration tried to implement these priorities in the budgets. What happens to relevant legislation, of course, also depends on Congress.

STEM education is key to accomplishing these big goals. What is the right role for the federal government in this area? Currently, STEM education funding is approximately $4 billion per year across different agencies.

Access to data is part of transparency. Data.gov is a highly visible product for people to not only look at but to use. He wants to see that some R&D data is included in Data.gov. He is encouraged by Science.gov.

Another area of interest is a database of projects tied to budget information within the usaspending.gov framework. It is his vision to be able to combine research results with more policy-related data (as a follow-on to the original vision for Radius). Some key pieces are available but the integration isn’t there. Ms. Jordan mentioned the Federal R&D database developed by OSTI, which uses a federated search across several science agency databases. Ms. Herbst suggested that we work together with OSTP on the requirements for such a system.

Open Public Access is an interest for OSTP on a number of fronts. There are various facets of the issue including the provision of a coherent infrastructure for science. Ms. Klein mentioned IP issues and open access. Mr. Koizumi acknowledged that IP is causing some delay in the consideration of open government. The CENDI Copyright Working Group indicated a willingness to share its expertise with the Open Government Team as they try to address IP issues.

Mr. Koizumi believes that being able to count things changes the way we look at them. There was discussion about the benefits of providing information about the amount of money spent on STI in comparison to agency R&D budgets.

The group also discussed the marking of government information, including the Controlled Unclassified Information (CUI). CENDI’s Copyright Working Group is a resource. On CUI, Lisa Weber indicated that she will contact the staff at NARA who are working on CUI and report back to the group about its status.

PCAST work is underway. A subgroup has been formed to specifically discuss Influenza A/H1N1. Other areas where the PCAST will provide advice include cybersecurity and the human space program. Open access is currently not among the key areas for the PCAST. The Committee is planning to meet with the President on August 6-7, 2009, depending on his schedule.