Download CopyrightIssues - Military Libraries Division

Public Access to DoD-Funded Research –
Copyright Issues
Special Libraries Association Annual Conference
Military Libraries Division and Legal Libraries Division
San Diego, CA
June 11, 2013
Michael W. Carroll
Professor of Law
American University Washington College of Law
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Information Environmentalism
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Access to Research in Journals
Why change?

Internet distribution of research creates new potential
to increase research impact
Copyright law controls distribution rights.
The law gives copyrights to researchers*

* It is possible that the university or other employer
owns the copyrights to researchers’ scholarship, but this
theory has not been truly tested in the courts.
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Access to Research in Journals
Challenges for Access
Researchers do not always make files available for
posting online
 Researchers frequently sign away these copyrights on
terms that prohibit the use of the Internet's potential

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Access to Research in Journals
Design Requirements for Online Access
Follow the File. Need a reasonable workflow that
induces researchers to provide the correct version of a
manuscript to the source of online access

Follow the Rights. Copyright law requires that an
online repository that provides systematic public access
to copyrighted works has a license to do so. Repository
managers need to get such licenses either from the
author(s) prior to transfer of copyright or from the
publisher after transfer.

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Access to Research in Journals
Funders and Universities Begin to Specify
Terms of Access
Authors need to be published.
 Authors are not willing or fully able to negotiate with
journal publishers on their own over how the research
will be shared with the public.

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Access to Research in Journals
Funder ROI
Funders have begun to assert their rights to maximize
return on investment

Terms and conditions of funding agreements
increasingly require grantee to manage the terms of
copyright transfer to ensure greater research impact via
open and public access via the Internet.

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Scholarly Communication
Institutional change is happening
Growth of funder and university policies
http://roarmap.eprints.org/
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ENTER THE OSTP POLICY
MEMORANDUM
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The OSTP Directive
2 Agency Public Access Plan
• “The Office of Science and Technology Policy
(OSTP) hereby directs each Federal agency with
over $100 million in annual conduct of research
and development expenditures to develop a plan
to support increased public access to the results of
research funded by the Federal Government.”
Apply to DoD?
Yes!
In FY 2008/2010, DoD funded approximately $1.6B
in basic and applied research at universities alone.
• ARO (Army Research Office):
soldier, ground force mission oriented
• AFOSR (Air Force Office of Scientific Research):
pilot, aerospace mission oriented
• ONR (Office of Naval Research):
sailor, marine, ship, ocean mission oriented
• DARPA (Defense Advanced Research Projects
Administration):
defense-wide technology innovation oriented
• DTRA (Defense Threat Reduction Agency):
weapons of mass destruction
• CBDP (Chemical Biological Defense Program):
chem/bio warfare defense
• CDMRP (Congressional Directed Medical Research
Program):
medical research
• OSD (Office Secretary of Defense):
overarching Defense issues
(Back to the OSTP Memo)
3. Objectives for Public Access to Scientific
Publications
. . . “Further, each agency plan shall:
a) Ensure that the public can read, download, and
analyze in digital form final peer reviewed
manuscripts or final published documents within a
time frame that is appropriate for each type of
research conducted or sponsored by the agency.
...
b) Facilitate easy public search, analysis of, and
access to peer-reviewed scholarly publications
directly arising from research funded by the
Federal Government”
Requirements Analysis
The agency must “ensure that the public can read,
download, and analyze in digital form” the peerreviewed manuscripts
Therefore, the plan must account for how the agency
or repository will get:
 A copy of the file
 A copyright license for the repository from which
the public is reading and downloading files.
Copyright Options
Agency plans should consider the following
questions:
• Who grants the license?
• When do they grant it?
• To whom do they grant it?
• What is the scope of the license?
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Copyright Options
Every funding agreement already includes
the grant of a copyright license from the
grantee to the funding agency.
E.g., under Circular A-110, “The Federal
awarding agency(ies) reserve a royalty-free,
nonexclusive and irrevocable right to
reproduce, publish, or otherwise use the
work for Federal purposes, and to authorize
others to do so.” (§ 36(a)).
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Copyright Options
Federal Purpose license
• License is agreed in advance as part of
funding award
• License is granted to USG at the moment
copyright attaches to the newly-created work
• Therefore any subsequent transfer of
copyright is subject to the USG’s license
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Copyright Options
NIH PMC License
• The NIH Public Access Policy does not rely
on NIH’s Federal Purpose license.
• Instead, grantees or researchers have to
keep sufficient rights after entering into a
publication agreement to grant NIH a public
access license.
• Although not required by copyright, PMC
does not allow bulk download for text mining
unless the publisher’s policy allows for it.
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Copyright Options
Combine the two?
• Could change the terms and conditions of
award agreements to grant USG a second
public access license.
• Granted as soon as copyright attaches
• Can be scoped to include more reuse rights
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Copyright Questions
Can I bulk download for purposes of
computational analysis (text mining)?
Can I reuse figures, tables, and other
elements from someone else’s article?
Can I reuse portions of my own articles?
Bottom Line: Reuse rights matter. Send the
message up the chain please!
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Copyright Questions
Who will provide public access?
I.e., who needs the copyright license?
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OSTP Memo
3. Objectives for Public Access to Scientific
Publications
. . . “Repositories could be maintained by the
Federal agency funding the research, through
an arrangement with other Federal agencies,
or through other parties working in
partnership with the agency including, but not
limited to, scholarly and professional
associations, publishers and libraries.”
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Copyright Questions
FundRef or its equivalent is useful; need a
standard metadata element
CHORUS has not engaged on the text mining
issue, but the OSTP Memo requires agencies
to permit users to “analyze” federally-funded
publications
“Analyze” includes computational analysis,
e.g. text mining
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Copyright Questions
In a CHORUS world, who is responsible for
the GAO engagement when it comes time to
audit agency compliance?
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Change of Subject
Publications are hard; data is easy!
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Change of Subject
Not!
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Scientific Data
Agencies Directed to:
Maximize access to data
Require data management plans
Create evaluation criteria and
compliance measures for these
Promote data deposit in public
repositories
Promote workforce development for
scientific data management, analysis,
storage, preservation, and stewardship
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Scientific Data
Who is this data workforce?
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Scientific Data
Adapted from The Graduate





Benjamin: I'm just...
Mr. Braddock: ...worried?
Benjamin: Well...
Mr. Braddock: About what?
Benjamin: I guess about my future. . . . .
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Scientific Data
Adapted from The Graduate

Mr. McGuire: I want to say one word to you. Just
one word.
 Benjamin: Yes, sir.
 Mr. McGuire: Are you listening?
 Benjamin: Yes, I am.
 Mr. McGuire: DATA
 Benjamin: Exactly how do you mean?
 Mr. McGuire: There's a great future in data. Think
about it. Will you think about it?
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Scientific Data
My sensors are generating 100 petabytes of
data per day, can you catalog, store, provide
access and preserve them?
If I use a classified algorithm to analyze
unclassified datasets, are my results
classified or unclassified?
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Scientific Data
I need to write a data management plan for
my next grant, can you help me?
What’s the best way to cite someone else’s
data set?
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Scientific Data
Does copyright apply to data?
(A: Only if it includes “original works of
authorship”
Either data elements are original –
photos
Or selection and arrangement of data is
original – but only the selection and
arrangement is subject to copyright
Most data represent facts and facts are
not works of authorship – they are in the
public domain)
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Scientific Data
Does copyright apply to data?
Even when copyright does not apply to
data, contractual terms of use can
constrain access and reuse
The word “license” is often conflated to
mean both a copyright license and a
plain, old contract (where the underlying
information is not protected by
copyright).
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Wrap up
Making publications accessible online
requires management of two workflows
- Follow the File
- Follow the Rights (copyright license)
Making Data accessible also has the same
two issues
- copyright analysis differs because a lot
of data is in the public domain
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Public Access
This is the future . . . .
You want in?
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Faculty Copyrights

Questions?
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