Chapter 3 Copyright Law Constraints on the Transfer of 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 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. Chapter 3 Copyright Law Constraints on the Transfer of Copyright Authority for All Government Works continue to be available to the public, noting that a fine line exists 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. Chapter 4 The Pros and Cons of Amending Copyright Law to Stimulate the Transfer and Use of Federal Computer Software Transfer and Use of 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 Senior officials at Agriculture; Commerce; DOD; including Air Force, Chapter 4 The Pros and Cons of Amending Copyright 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 In making career advancement decisions, federal laboratory administra- develop and document software with commercial applications. 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. |