Chapter 2 Federal Agencies' Efforts to Comply with the Software Developed Federal agencies' policies for allowing contractors and grantees to copyright and commercialize software do not appear to contravene federal copyright law. On its face, the copyright prohibition (17 U.S.c. 105) applies only to a "work of the United States government," which is defined as one prepared by an officer or employee of the U.S. government as part of that person's official duties. The copyright law is silent on whether this restriction is applicable also to works funded by federal agencies but produced by private entities. However, the legislative history for the Act for the General Revision of the Copyright Law indicates that decisions on whether to allow copyrights of works produced under contracts, grants, or cooperative agreements should be left to the discretion of the funding agency: Chapter 2 Federal Agencies' Efforts to Comply with the technical data, other data, and computer software under a DOD contract. DOD's policy, to be codified under part 227.480(c), is to allow a contractor to copyright any work of authorship developed under a contract, unless the work is designated a "special work." In return, the contractor is required to grant to the government and authorize the government to grant to others a nonexclusive, paid-up, worldwide license for government purposes in any work of authorship first prepared, produced, originated, developed, or generated under the contract. The scope of the government's license corresponds to the rights the government has obtained under the contract. For software, the government typically will acquire "unlimited" rights if software is developed exclusively at government expense or "restricted" rights if the software is developed exclusively at the contractor's expense. For technical data, the government typically will acquire (1) “unlimited" rights if the technical data are developed exclusively at government expense, (2) “limited" rights if the technical data are developed exclusively at the contractor's expense, or (3) “government purpose license" rights if the technical data are developed with joint funding. According to DOD procurement attorneys, the government's unlimited rights to software or technical data, in effect, could make them generally available to others. If the government has limited or restricted rights, it cannot release or disclose such data outside the government or use the data for manufacture without the contractor's written permission. Government purpose license rights are a combination of limited and unlimited rights. DOD procurement attorneys told us that DOD historically obtained unlimited rights to jointly funded technical data and software. However, various amendments to the rights in technical data provision in 10 USC 2320 have changed DOD's right to jointly funded technical data. In particular, section 953 of the Defense Acquisition Improvement Act of 1986 (P.L. 99-661) required that DOD's rights to jointly funded technical data be negotiated. Section 808 of the National Defense Authorization Act for Fiscal Years 1988 and 1989 (P.L. 100-180) further clarified a DOD contractor's rights to these data. Because the technical data provision does not cover software, DOD's rights to jointly developed software generally Chapter 2 Federal Agencies' Efforts to Comply With the Government Works Federal Acquisition have not been affected. Reflecting these amendments, DOD's interim regulation provides for a government purpose license right, which limits the government's right to use, duplicate, or disclose data (and computer software in the Small Business Innovation Research program) or permit others to do so for government purposes only, including competitive procurement. The interim regulation further states that the government purpose license rights, which generally are to be negotiated in advance, should be time limited-normally for 1 to 5 years after the estimated date for the contractor's delivery of the product to which the data pertain. However, a longer period may be negotiated to provide the contractor a reasonable opportunity to recover its investment. The government retains unlimited rights to the data after the time period expires. Under the Federal Acquisition Regulation (48 C.F.R. Part 27.404(f)) for Chapter 3 Copyright Law Constraints on the Transfer of Certain Federal Technology According to officials we interviewed at seven federal agencies, most of NASA and some DOD officials believe that authority to protect and license semiconductor mask works would be useful for their efforts to transfer this technology in the future. However, only a few federal laboratories conduct R&D involving semiconductor mask works, and the officials did not identify any examples in which the transfer of mask works had been constrained. In addition, National Institutes of Health (NIH) officials suggested considering new intellectual property protection that would be faster and less expensive to obtain than currently available patent protection for cells and other microorganisms developed through biomedical research. Chapter 3 Copyright Law Constraints on the Transfer of Constraints to Senior administrators, patent attorneys, and technology transfer officials we interviewed at Agriculture; Commerce; DOD, including Air Force, Army, and Navy; EPA; NASA; and NIH stated that the prohibition on copyrighting federal works has significantly constrained their efforts to transfer certain software to U.S. businesses and other organizations. These officials told us that federal software could be more effectively transferred and more widely used if agencies had authorities similar to those for commercializing federal inventions to (1) copyright software and grant a partially exclusive or exclusive license for it and (2) provide an incentive to federal researchers to further develop and document the software by allowing them to share in any royalties received from licensing it. DOE officials told us that the prohibition on copyrighting government works has not constrained their efforts to transfer software because DOE employees develop very little software. Contractor-operated laboratories have generated almost all of DOE'S research-related software. Under DOE's software policy, a contractor can obtain a release from DOE to copyright and commercialize software. Businesses Want to Protect Agency officials believe a substantial portion of their laboratories' Investments in Commercializing Technologies software has broader commercial applications and this software could be transferred most effectively if the government had the authority to copyright it and grant partially exclusive or exclusive licenses. Agriculture, EPA, NASA, and NIH officials stated that a conservative estimate of software with potential commercial applications would be 10 percent of all of the software developed. Agency officials distinguished software from traditior al copyrightable works such as publications or data bases, stating that software is technology that can be modified for other commercial applications. For example, a growing number of federal R&D programs provide artificial intelligence for improving decisions made by, among others, doctors diagnosing diseases and prescribing drugs, farmers growing cotton in the southern United States, or architects designing buildings for fire safety. In addition, in some cases the laboratories have developed graphics and other applications programs with commercial potential. |