Chapter 2 Federal Agencies' Efforts to Comply With the NTIS' Software example, one NIH researcher mentioned distributing 300 copies of a computer program to requesters at no cost, while a company marketed the software for $600 per copy. Agency officials stated that most of their software is adequately disseminated to users by making it generally available through federal software distribution centers and by laboratory researchers. This software typically has specific scientific applications that are useful primarily to other researchers. Alternatively, some federal software, such as the National Library of Medicine's Grateful Med program for physicians and DOD's vocational training software used to train technicians, is developed and documented sufficiently enough to be readily used by outside organizations. The Director of the National Library of Medicine and a DOD official stated that the government's and the public's interests may be best served by making this software directly available to outside users rather than by providing a company with an exclusive license to market it. NTIS, COSMIC, and NESC recognize that copyright protection is not availa- NTIS is the primary clearinghouse for federal agencies' software, technical publications, and data bases. NTIS advertises software through its catalogue and newsletter, which provide brief abstracts, and has begun advertising in technical journals and through mailings to targeted customers. NTIS requires that a federal laboratory or agency submit a user's manual or guide with the software, and it verifies that the software operates on specified computer systems. However, NTIS provides no additional services, such as training, and will refer users with questions about software applications to the originating laboratory for assistance. Table 2.1 shows NTIS' sales of microcomputer diskettes and magnetic tapes between 1987 and 1989. According to NTIS' manager for software sales, the declining value of software sales reflects (1) a reduction in 1988 of the average price per microcomputer diskette from $75 to $50 and (2) a decline in the number of magnetic tapes that agencies have sent to NTIS. The software sales manager added that about 5 percent of Chapter 2 Federal Agencies' Efforts to Comply with the Table 2.1: NTIS Software Sales, 1987-89 the software accounts for a large volume of sales, including widely disseminated National Library of Medicine diskette programs such as Grateful Med. For the remaining 95 percent of the software, NTIS typically sells about 25 to 30 copies of each microcomputer diskette and about 10 copies of each magnetic tape. Table 2.1 also indicates that about 7 percent of NTIS' software sales in 1989 were to foreign customers. NTIS sells the source code, which computer programmers need to readily improve the software, to both U.S. and foreign customers, if the sale is in compliance with the Export Control Act. Chapter 2 Federal Agencies' Efforts to Comply with the NESC's Software NASA's management instruction for distributing computer programs states that COSMIC shall make a program (1) generally available without restriction if the program has relatively limited utility by others or was previously published or released without restrictions, (2) available on a restricted basis and normally for domestic use if the program has significant utility and value and warrants only domestic distribution for a period of time, typically 1 year, or (3) available under a lease agreement with appropriate fees and restrictions, which normally include limiting its use to domestic organizations for 2 or more years, if the program has very high utility and value. At NASA's request, COSMIC has leased 18 of about 1,200 computer programs through an agreement that limits the licensees' use and reproduction of the program. As part of the agreement, the licensee agrees to (1) not disclose or remove the program outside of its prime installation, (2) release or disclose only machine-readable code outside the United States, (3) make additional copies of the program only after obtaining COSMIC's permission, (4) refrain from changing or removing any indication of ownership of the program, copies, or computer output, (5) remove and return, or otherwise dispose of, all program tapes, copies, and documentation upon termination of the agreement. A NASA attorney told us that COSMIC's restrictions were based on contract law. The attorney added that NASA's policy giving preference to U.S. organizations is based on the declaration of policy and purpose in the National Aeronautics and Space Act of 1958 (42 USC 2451(c)), which states that the aeronautical and space activities of the United States shall be conducted so as to contribute materially to the preservation of the role of the United States as a leader in aeronautical and space technology and its application to the conduct of peaceful activities within and outside the atmosphere. Chapter 2 Federal Agencies' Efforts to Comply with the Government Works engineering computer programs to U.S. organizations and 2 or more copies of 24 scientific and engineering computer programs to foreign organizations.2 In May 1988 DOE issued Acquisition Letter 88-1 on software policy. This letter established new procedures for its contractor-operated laboratories to obtain a release from DOE to copyright software with commercial potential. If DOE grants this release, the contractor can copyright and exclusively license the software but must make an abstract of the software available to the public through NESC. DOE'S Assistant General Counsel for Patents stated that his office has received about 10 requests for releases under the new policy. Patent attorneys for contractors that operate four DOE laboratories told us, however, that the contractors decided not to amend their operating contracts to adopt the new software policy because the disadvantages outweighed the advantages, citing these examples: (1) under the new software policy, a contractor cannot obtain a release to copyright other works, such as engineering drawings and (2) the copyright could automatically revert to DOE if requisite letters, for whatever reason, are not in DOE'S files. The patent attorney for another contractor-operated laboratory that amended its contract stated that the laboratory had applied for only three waivers under DOE's software policy mainly because the policy was administratively burdensome, requiring the contractor to make too many representations and certifications. Chapter 2 Federal Agencies' Efforts to Comply With the and in other ways. A Corps of Engineers attorney stated that, while copyright protection cannot be provided for federal software serving as the basis of a cooperative R&D agreement, the collaborator could copyright a jointly developed, derivative work. The Corps of Engineers may not make software involved in a cooperative R&D agreement available to others by sending it to NTIS because the software would be insufficiently developed and documented for NTIS' standards. For example, the Construction Engineering Research Laboratory has not sent to NTIS two software programs serving as the bases for ongoing cooperative R&D agreements negotiated in 1988. A Corps of Engineers attorney also noted that the Corps may turn down any subsequent requests for the original Corps' software either as part of another cooperative R&D agreement or under the Freedom of Information Act. A patent attorney at the Naval Surface Warfare Center told us that the center has used Federal Technology Transfer Act authorities in two instances to transfer its software. Although the transfer in each case was initially conducted through a nonexclusive licensing agreement, the Navy is converting each to a cooperative R&D agreement. According to a Navy attorney, the Navy would not use a cooperative R&D agreement as the basis for withholding the Naval Surface Warfare Center software from another business requesting access. However, the Naval Surface Warfare Center has not sent this software to NTIS because (1) it has not been sufficiently developed and documented and (2) laboratory managers do not perceive that making software generally available through NTIS is a sufficiently effective means to transfer the software to justify the added resources and time needed to meet NTIS requirements. Officials at several other agencies have sought to attract businesses to commercialize their laboratories' software that was insufficiently developed and documented for external use. However, these officials indicated that they have had difficulty in transferring this software, particularly through cooperative R&D agreement because (1) businesses are unwilling to put the time and money into commercializing federal software without adequate intellectual property protection and the assurance of some kind of exclusivity and (2) the extent to which the copyright prohibition applies to software developed jointly by federal and nonfederal effort has to be reviewed on a case-by-case basis. |