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Chapter 3

Copyright Law Constraints on the Transfer of
Certain Federal Technology

microorganisms that is less costly and faster than obtaining patent protection. According to NIH officials, the commercial utility of a cell or microorganism is uncertain because many, if not most, of the thousands of cells or microorganisms that can be created will have no commercial utility. The NIH officials perceive patenting as too costly and taking too long to protect this biotechnology unless an immediate commercial application is known or expected.

Sui generis, or unique, protection for cells and other microorganisms
could be established by amending the patent statute (Title 35) to add a
new chapter that provides patent-like protection. This patent-like pro-
tection could be administered by the Patent and Trademark Office or,
alternatively, an agency that conducts biomedical R&D. For example,
Agriculture administers sui generis protection for sexually reproducing
plants under the Plant Variety Protection Act (7 U.S.c. 2321 et seq.).
(App. I presents alternative legislative issues and approaches that NIH
officials identified for sui generis protection for cells and other
microorganisms.)

Computer Data Bases

Some officials at DOD, the Agricultural Research Service, and NTIS suggested that consideration be given to amending copyright law to permit federal agencies to copyright and license data bases, principally to recover costs associated with maintaining and better disseminating the data base's information. A DOD official stated that in some cases DOD may decide not to maintain or publicize a data base because it has insufficient funds available to cover the associated costs. Similarly, two Agricultural Research Service officials mentioned that tight R&D budgets and competing priorities constrain their agency's ability to further develop a data base and provide better services for responding to individual requests for special analyses. NTIS officials stated that copyright authority would enable NTIS to increase its customer base and revenues by preventing companies from reselling federal computer data bases without approval.

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Chapter 3

Copyright Law Constraints on the Transfer of
Certain Federal Technology

Copyright Authority

for All Government Works

continue to be available to the public, noting that a fine line exists
between software and computerized data bases.

Several agency officials we interviewed proposed repealing the copyright prohibition for all federal government works. In addition to improving technology transfer for federal software, the officials cited the following reasons for their views:

Copyright authority would allow the federal agency to prevent third parties from misrepresenting the authorship of a federal government work.

Computer technology allows (1) the ready expression of ideas in different media, such as computer diskettes or publications, and (2) storage on diskettes of both a data base and the computer program to retrieve and cross-index it. If the government were allowed to copyright only computer software, a federal laboratory could decide to disseminate technology as a computer program instead of as a publication solely because it could be copyrighted. In addition, federal agencies would have to determine on a case-by-case basis whether works containing both computer programs and data bases could be copyrighted.

• Publishers have turned down contributions written by DOD professors at the military academies and other universities. The publishers expressed concern about copyright protection for a book that includes works that cannot be copyrighted.

• The United States is the only major developed country that has an extensive prohibition on copyrighting national government works.

⚫ NTIS does not receive appropriations and, consequently, is funded solely by its sales revenue. Copyright authority would enable NTIS to increase revenue by preventing companies from reselling federal software, data bases, and publications.

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Chapter 4

The Pros and Cons of Amending Copyright Law to Stimulate the Transfer and Use of Federal Computer Software

Transfer and Use of
Software With
Commercial

Applications

According to senior officials we interviewed at six federal agencies, the copyright law should be amended to permit the government to copyright and grant partially exclusive and exclusive licenses for computer software. The officials also support amending the Federal Technology Transfer Act to enable federal researchers to share in any royalties generated by licensing the software. They believe these changes would (1) improve the transfer and use of federal software with commercial applications because U.S. businesses and other organizations could protect their investment, (2) provide federal researchers who develop software similar opportunities as those available to federal inventors for career, financial, and intellectual recognition, (3) facilitate public access to federal software in certain instances, and (4) further agencies' mission to improve public health and safety. (App. II identifies alternative legislative issues and approaches that patent attorneys at the seven federal agencies identified for stimulating the transfer and use of federal software and semiconductor mask works.)

Some federal laboratory managers and researchers, however, oppose
amending copyright law. They are concerned that copyrighting and
licensing federal software would (1) distract researchers from the labo-
ratory's basic research mission, (2) interfere with informal exchanges of
information and software among federal and university scientists, and
(3) interfere with the existing government policy of publicly disseminat-
ing technical information. In addition, Information Industry Association
officials oppose allowing federal agencies to copyright software because
agencies might either restrict access or give favored access to federal
scientific and demographic data bases provided by software.

Senior officials at Agriculture; Commerce; DOD; including Air Force,
Army, and Navy; EPA; NASA; and NIH support amending copyright law to
allow the government to copyright and license computer software and
federal researchers to share in any resulting royalties. According to the
officials, software is a technology that in many instances needs to be
further developed before it can be marketed. They added that these
authorities, which are needed to protect such development, are a logical
extension of legislative changes enacted in the past 10 years for inven-
tions. The agency officials perceived copyright and licensing authorities
as tools to improve their agencies' technology transfer efforts because
(1) with copyright protection for their value added, businesses would be
more willing to further develop and market federal software and (2) the
opportunity to share at least 15 percent of any royalties would give fed-
eral researchers greater incentive to work with businesses to develop

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Chapter 4

The Pros and Cons of Amending Copyright
Law to Stimulate the Transfer and Use of
Federal Computer Software

commercial software products. As a result, the officials believe this software would be more widely used for commercial applications than under current government policy.

Private intellectual property attorneys and business executives confirmed the importance of providing a business intellectual property protection for its investment in commercializing a technology. One attorney stated that companies are concerned about speed and certainty in licensing technology, adding that if an agreement cannot be closed within 6 months or if ownership rights are clouded, the business is likely to find alternative projects for its funds. A Control Data Corporation executive strongly agreed with this statement, adding that exclusive intellectual property rights to federal software are an essential prerequisite for his company to invest in commercializing it, unless the software is known to have a large market.

In addition, NASA and Agricultural Research Service officials support copyrighting and licensing commercially useful federal software to give preference to U.S. businesses and farmers. The Agriculture officials noted that software distributed through NTIS is equally available to U.S. and foreign customers, even though only U.S. taxpayers paid for the R&D. They added that, alternatively, licensing the software could contractually limit its distribution to U.S. organizations.

One senior EPA laboratory manager and officials of the Information Industry Association expressed concern that allowing federal agencies to copyright and exclusively license computer software might restrict access and/or increase the cost to the public for access to this software. They stated that federal agencies would be less likely to publicly disseminate the software by sending it to NTIS or another software distribution center. The Information Industry Association officials also noted that a fine line exists between software and computerized data bases. They stated that because more and more government information of all kinds is maintained only in electronic formats, the association is concerned that even the possibility that federal agencies could claim copyright in such data bases would constrict public access to government information and chill development of private sector information products based on such information. In addition, the EPA laboratory manager stated that

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In making career advancement decisions, federal laboratory administra-
tors give great weight to the publications and patents of researchers.
However, they do not give similar weight to researchers' efforts to

develop and document software with commercial applications.
Companies can market federal software in the public domain under their
own name without authorization from the originating laboratory and
without recognizing the federal researchers who developed the
software. Alternatively, in some instances companies have advertised
that a federal laboratory developed the software to add to the com-
pany's credibility, but because the company modified the software, the
federal researchers and laboratory did not wish to be associated with
this new product.

In addition to providing greater recognition for federal researchers who develop software, copyright and licensing authority may reduce the time a researcher is obliged to take away from research to respond to users' questions, according to some officials. The Director of the National Library of Medicine cited an NIH researcher who described an algorithmic software program he developed in a national medical journal. The researcher subsequently received a large number of requests for help and training in applying the program, which could have been transferred to a company that would service the software under a copyright licensing agreement. According to agency patent attorneys, copyright and licensing authorities for software would add only marginally to their office's administrative responsibilities. They noted that registering for copyright protection does not require the specialized legal skills needed to prosecute a patent application.

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