Chapter 4 The Pros and Cons of Amending Copyright Facilitating Public incentives for transferring software because further developing the software would detract from the laboratory's R&D mission and open exchanges among researchers: ⚫ One research manager stated that 90 percent of the effort in developing commercial software goes into the last 10 percent of the development and documentation effort. The manager believed that federal researchers should focus on generating and publishing ideas and leave to industry the responsibility for developing commercial software applications. ⚫ Similarly, some researchers told us that emphasis on copyrighting and licensing software would shift priorities from basic research to applied research with commercial applications, which they considered to have less long-term importance for advancing the field of research. A research manager and a researcher were concerned that commercializing federal software would inhibit the free flow of ideas within a laboratory or among researchers at different institutions because researchers would withhold information that might be commercially valuable. The researcher mentioned that this also could affect the availability of software for researchers through computer bulletin boards. ⚫ A research manager pointed out that assigning royalties for software is likely to be more complex than for inventions because many more people are likely to be involved in the stages of its development. Agency officials support allowing the government to copyright and license federal software with commercial applications to stimulate its dissemination to and use by U.S. businesses and other organizations. In many cases federal laboratories do not send research-related software to federal software distribution centers for general dissemination. For example, officials at two DOD laboratories told us that their laboratories generally do not send software to NTIS. According to one of the officials, his laboratory has little incentive to develop and document it sufficiently to meet NTIS' minimum requirements. Similarly, Agricultural Research Service and NIH officials stated that they normally rely on their researchers to provide software to colleagues and others upon request. As shown in table 2.1 in chapter 2, NTIS' software sales declined from $582,000 in 1987 to $395,000 in 1989. An important reason for the decline is that agencies are sending fewer large computer programs to NTIS, which typically sells only about 10 copies of these programs. Chapter 4 The Pros and Cons of Amending Copyright Furthering Agencies' would provide enhanced versions of the software and user support services, such as training and hotlines. For example, NASA's NASTRAN software is available through COSMIC and a former NASA Contractor that developed it. Users prefer the contractor's version of NASTRAN even though it is substantially more expensive and even though COSMIC provides user support services for its version. The reason for this preference, according to COSMIC's marketing coordinator, is that the contractor's version is easier to use, has more enhanced modules for specific commercial applications, and is better advertised. An Army Corps of Engineers researcher involved in two software cooperative R&D agreements also pointed out that the Corps and its contractors benefit from the transfer of software because they can get access to the enhanced versions of the software and support services that the cooperative R&D agreement partner subsequently provides. In addition, NIH's patent attorney stated that copyright protection could Officials of the Agricultural Research Service, the Air Force, the Army Corps of Engineers, the National Library of Medicine, the National Institute of Standards and Technology, and the Naval Research Laboratory stated that copyright protection would enable federal agencies to further their mission of promoting public health and safety by controlling the distribution of health and safety-related software. For example, these officials noted that their laboratories' artificial intelligence software is targeted for skilled practitioners, such as doctors, to diagnose diseases; architects, to design fire safety in buildings; and land use planners, to control erosion. However, because federal software is put in the public domain under current policy, the federal laboratories have no control over a company that obtains the software regarding (1) to whom Chapter 4 The Pros and Cons of Amending Copyright Protecting the Interests it sells the software, (2) any modifications it makes to the software, (3) whether customers are trained to use the software properly, and (4) whether customers are notified of the federal agency's updates to the software, including corrections of any mistakes in it. Army Corps of Engineers attorneys mentioned, for example, that companies have advertised in construction industry magazines the availability for sale of Hydrological Engineering Center software, known as HEC I and II, without the Corps' authorization." The Director of the National Institute of Standards and Technology cited as an example Hazard I, an artificial intelligence program for planning fire prevention in a building by analyzing how a fire would spread." The National Institute has licensed Hazard I to the National Fire Protection Association but also has made the software available through NTIS. The director expressed concern about the government's liability if (1) Hazard I was marketed by a company that obtained it through NTIS, (2) Hazard I was then incorrectly applied by a customer who had insufficient knowledge of the software and the building being analyzed, and (3) a subsequent fire caused greater property damage and/or personal injuries because Hazard I had been misused. Conclusion According to senior officials at six federal agencies, copyrighting, licensing, and royalty sharing authorities will stimulate the transfer and use of federal software with commercial applications by providing businesses protection for the investment of their resources and by providing federal researchers with an incentive to further develop and document the software. The officials stated that, as in the case of commercializing inventions, businesses are unwilling to invest in developing and marketing federal software without copyright protection. Executives from two businesses that have considered commercializing federal software, noting that return on investment is time-sensitive, said that their companies would require copyright protection and exclusive rights to federal software before further developing commercial applications to prevent competitors from getting access to the federal software. In some cases, copyright authority also would facilitate public access to federal software and further the missions of agencies to improve public health and safety. Chapter 4 The Pros and Cons of Amending Copyright Matters for federal agencies to copyright software because agencies might either restrict access or give favored access to federal data bases. To effectively transfer and use federal computer software while accommodating concerns about access to federal data bases and shifting federal laboratories' basic research mission, it may be appropriate to provide copyright and licensing authorities for federal software with wider commercial applications that needs further investment to be effectively transferred. This change could be accomplished by amending (1) the copyright law (17 u.sc. 105) to allow federal agencies to copyright and grant nonexclusive, partially exclusive, or exclusive licenses to computer software on a case-by-case basis if such protection would stimulate its effective transfer and use or (2) the Federal Technology Transfer Act (15 U.S.c. 3710a) to authorize agencies to copyright and grant licenses to federal software under a cooperative R&D agreement. Under either option, consideration should be given to extending the Federal Technology Transfer Act's royalty-sharing authority (15 USC. 3710c) to include federal software. In addition, if the copyright law is amended, it would be appropriate to include procedures similar to those required for granting patent licenses (35 u.s.c. 209) to ensure fairness in granting an exclusive or partially exclusive license for federal software to a nonfederal entity and diligence by the licensee in commercializing the software. |