Advancing Commercialization of Digital Products from Federal Laboratories (2021) / Chapter Skim
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5 Copyrights, Digital Products, and Federal Laboratories
5 Copyrights, Digital Products, and Federal Laboratories
Pages 59-78
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From page 59... ...
This chapter explores the potential role of copyright in advancing commercialization of digital products, especially software, created by federal labs. The discussion centers on a key consideration -- that digital products created in government-owned, government-operated (GOGO)
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Computer Software The classic legal model of computer software contemplates two basic forms of computer code: source code -- programming language instructions written (usually) by a human author; and object code -- the machine-readable executable version of a source code program.1 Given the clear analogy between the written programming language code of a software program and other written works of authorship (such as books and articles)
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. As described in the House Report accompanying the 1976 Copyright Act, "the effect of section 105 is intended to place all works of the United States Government, published or unpublished, in the public domain" (U.S.
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. To eliminate any inconsistency between the new right to sell SRD and the government works exclusion in the Copyright Act noted above, the SRD Act created an express exception allowing the secretary to "secure copyright and renewal thereof on behalf of the United States as author or proprietor in all or any part of any standard reference data" notwithstanding any provisions of the Copyright Act to the contrary (15 U.S.C.
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Government Works As noted above, Section 105(a) of the Copyright Act provides that "copyright protection under this title is not available for any work of the United States Government" (emphasis added)
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. The committee heard of assertions by federal laboratories of copyright ownership of software and other qualifying digital products founded principally on arguments regarding foreign copyrightability.6 In the committee's view, however, such arguments suggest that 6 Presentation to the committee by Jordan Kasper, Defense Digital Service, December 5, 2019.
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Likewise, if a federal researcher collaborates with a contractor to create a joint work, such as software development, the contractor alone will hold copyright in that work, and neither the federal researcher, the lab, nor the governing federal agency will have any rights in it. However, government labs that are contractoroperated are eligible to own copyright in their works.
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) requires that the collaborator agree "not to assert claim to copyright, publish or release to others any computer software first produced in the performance of this contract unless the Contracting Officer authorizes through a contract modification." And according to information provided to the committee, "NASA rarely allows contractors to assert copyright" under this provision.11 APPLYING COPYRIGHT TO FEDERALLY CREATED SOFTWARE Since the mid-1980s, proposals have been made to permit governmentoperated federal laboratories to obtain and hold copyright in the computer software they develop.
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, 12 at the request of two different congressional committees, interviewed officials at prominent federal laboratories and agencies13 regarding their ability to transfer federally developed software to the private sector (GAO, 1988, 1990)
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158) (more specifically, "the derivative works provisions of the Copyright Act provide an excellent and adequate means for industry to protect work which they further develop that is based on or ‘derived from' public domain government works" [written comments by the Software Publishers Association]
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. Therefore, as described in Chapter 3 and in this chapter, the ability of federal labs to grant exclusive rights may be necessary for a diversity of private actors to make the additional investment required to commercialize federally produced software, although additional data may be needed in order to make a final determination on this question.
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Moreover, the use of these backdoor methods is unevenly distributed and not fully understood across the federal labs, with the result that while some digital products are transferred downstream in imaginative ways, others are not. Foreign Free Riders Historically, one issue motivating the push to make copyright available for federal software has been concern over international competitiveness.
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. Nevertheless, it remains unclear that giving foreign firms free access to digital products produced by federal labs is necessarily detrimental to U.S.
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government employee as part of their official duties."22 While one might argue that under Section 105(a) of the Copyright Act, software developed by federal employees is already in the public domain, documentation evidencing the contribution of software to a larger OSS project is often needed.
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Because federal labs lack copyright in software products they independently develop (i.e., not at a GOCO lab or in conjunction with private parties to a CRADA) , the legal basis for these labs to release software under one of the common OSS license agreements remains unclear.
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. Such calls are well intentioned, but appear to miss the point that "normal" copyright-based OSS licenses are not appropriate for the dissemination of software that lacks copyright because it is developed by federal employees.
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Adding copyright to the already available option of patent protection for federally created software would provide the federal labs with discretion to determine which of the two regimes would best facilitate commercialization and the public interest in any given case. LIMITING AND ASSESSING COPYRIGHT AND EXCLUSIVE LICENSING OF SOFTWARE DEVELOPED BY GOGO FEDERAL LABORATORIES If Congress should decide to allow copyright protection in governmentcreated software, it would nonetheless be necessary to place certain limitations on federal agencies' abilities to grant exclusive software licenses.
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FINDINGS AND RECOMMENDATIONS Finding 5-1: With some exceptions, the Copyright Act prohibits copyright in federally created works, and the federal government maintains a general policy of making such works accessible in a manner consistent with the public interest. Finding 5-2: The inability of government-owned, government-operated laboratories to assert copyright in federally developed software creates incentives for those labs to circumvent existing rules in order to facilitate technology transfer and commercialization.
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Recommendation 5-4: If Congress does not amend Section 105(a) of the Copyright Act to allow government-owned, government-operated laboratories to hold copyright in federally created software, the director of the National Institute of Standards and Technology should develop a uniform federal software contribution agreement that does not depend on
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of the Copyright Act.
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