J-21 STI Submission Guidelines for BCOs - Copyright and Data Rights.pdf

1DISTRIBUTION STATEMENT A. Approved for public release.

Defense Technical Information Center (DTIC) http://www.dtic.mil

• Protection provided by law to the authors of “original works of authorship”

– Texts, images, recordings, photographs, films, software

– Covers published and unpublished work

– Expression only; not ideas, facts, processes

– Automatic; [since 1989] no registration or notice required

• “Fixed” in a tangible medium

– “…now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [section 102(a)]

• Includes the Internet

U.S. Copyright Law- Title 17 of the United States Code

2DISTRIBUTION STATEMENT A. Approved for public release.

• All works published before 1923 are in the public domain

• Published between 1923 and 1963:

– 28 years from date of publication, plus renewal of 47 years if a renewal application is filed

• Published from 1964 to 1977:

– 28 years from date of publication, plus an automatic renewal term of

47 years

• Created after 1 January 1978:

– Life of the author (the “x factor”) plus 70 years

– Works made-for-hire protected 95 years from publication or 120 years from creation

Copyright Basics- Duration for published works

3DISTRIBUTION STATEMENT A. Approved for public release.

• Publicly available

• Not owned or protected by copyright

• May be used by anyone, anytime without permission, license, or royalty payment

• Includes:

– Works on which the author never claimed copyright

– Works on which the terms of copyright have expired

– Works where author forfeited copyright

– Works of the U.S. Government- created by federal employees or military personnel as part of their official duties

Copyright Basics- Works in the Public Domain

4DISTRIBUTION STATEMENT A. Approved for public release.

Myth: Information published by, sponsored by, or made available by the U.S. Government is in the public domain

– Not true- only Government works may be in the public domain (if they have been cleared for public release)

– Public access does not mean public domain (i.e. lack of copyright)

Government Works vs. Government Information

5DISTRIBUTION STATEMENT A. Approved for public release.

Government Works vs. Government Information

• Government works

– Definition

• Government-published

• Government-authored;

Title 17 USC, sects. 101 and 105

– Not copyrighted

• Public domain in the U.S.

– Uses

• All uses allowed

• No permission needed

• Government information

– Definition

• OMB-A130

• Title 44 USC sect. 1901

– May be copyrighted

• Contractor/grantee reports

• Government license

• Commercial copyright

– Uses by Gov’t and 3rd parties

• Depends

• Permission may be needed

6DISTRIBUTION STATEMENT A. Approved for public release.

Can the Government use, reproduce and distribute?

Yes, if the work-

1) is a deliverable

2) has a data rights license

Contractor owns the copyright-

1) Contract grants the government a license [data rights]

2) Type of license determines what the government may do with the work

Contracted Works

7DISTRIBUTION STATEMENT A. Approved for public release.

Data rights are the legal rights a contractor and/or government have to use technical data, intellectual property, or software.

What are data rights?

8DISTRIBUTION STATEMENT A. Approved for public release.

What license rights does the Government obtain to data developed under a government contract?

The scope of the agency’s licensing rights generally depends on the source of the funding (government, mixed, private), and the nature of the data (commercial or noncommercial) and the negotiated terms of the contract.

Data rights

9DISTRIBUTION STATEMENT A. Approved for public release.

If the Government exclusively funds the project, the agency generally obtains an “unlimited rights” license.

If the Government and the contractor both fund the project, and the contractor delivers proprietary technical data or computer software, the agency may acquire a “Government purpose rights” license

If the project is exclusively funded by the contractor, the agency usually acquires a “restricted rights” license in noncommercial computer software and a “limited rights” license in noncommercial technical data.

[Also, “Specifically negotiated license rights” may be negotiated and the rights are unique to that application.]

Types of data rights

10DISTRIBUTION STATEMENT A. Approved for public release.

What is the scope of these licensing rights?

An “unlimited rights” license means that the Government can use, modify, reproduce, release or disclose technical data or computer software in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

A “Government Purpose rights” license means the rights to use, modify, reproduce, release or disclose the technical data or computer software within the Government without restriction and outside the Government for a Government purpose.

“Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government.

Scope of data rights

11DISTRIBUTION STATEMENT A. Approved for public release.

Copyright is automatic- what rights does the Government have?

• User must do the analysis:

– Who is the author of the work and what is his/her affiliation?

– Who is the owner or publisher of the work?

– Who has what rights to the work?

• Under copyright or contract law

– What are the terms and conditions of use?

• Unlimited rights, Government purpose rights, or no rights

Copyright Management- Government data rights?

12DISTRIBUTION STATEMENT A. Approved for public release.

• Who is the Author/Owner?

– Author= Government employee or other?

– Owner= Government agency, or contractor/grantee, or publisher?

• Government licenses- conditions of use

– Full funding- Unlimited rights

– Partial funding- Government purpose rights

The type of rights determines what the government can do with the work.

Public release does not mean public access.

Copyright Management- Data rights analysis factors

13DISTRIBUTION STATEMENT A. Approved for public release.

• Publisher

– Non-profit or FFRDC fully-funded by government, or 3rd party academic or commercial

• Author biographical information

– Usually found at bottom of first or last page

• Organization/Agency affiliation (at the time of publication)

– Usually found after or below the author’s name; sometimes found in biographical note

• Copyright notice (includes open access)

– Usually found at the bottom of the first page (the fine print)

• Acknowledgements

– Usually found at the end of an article/paper. Credits the government sponsor and gives the funding information such as a contract or grant number

Copyright Management- Data rights analysis (con’t.)

14DISTRIBUTION STATEMENT A. Approved for public release.

Public release- Range of rights

• Unlimited Rights

– Authored by government employees within the scope of their government jobs

– Government published

– Authored by a contractor or grantee for which the Government has an unlimited license

– Authored by others who grant the Government permission for unlimited public release

• Government Purpose Rights

– Joint works or authored by contractors or grantees;

published by 3rd parties= journal articles, conference papers, proceedings

• No Government Rights

– No government authors and no government funding

15DISTRIBUTION STATEMENT A. Approved for public release.

U.S. Government contract work subject to the following license:

The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in the work to reproduce, prepare derivative works, and perform publicly and display publicly by or on behalf of the Government.

All other rights reserved by the copyright owner.

Unlimited rights, as defined in FAR/DFARS, includes the right to distribute to the public.

(but this is only for the Government; not anyone else!)

Public release- Unlimited rights

16DISTRIBUTION STATEMENT A. Approved for public release.

• Contractor or grantee-authored reprints of journal articles and conference papers *as published* that are copyrighted by third parties [with whom the government does not have a direct business relationship]

• Conference proceedings resulting from a symposium or workshop partially funded under grant or contract from DoD or another Government agency

Government has limited data rights through FAR/DFARS for Government use and distribution; storage in a non-public archive/system is permitted; display and use by federal employees is permitted.

Public Release- Government Purpose Rights

17DISTRIBUTION STATEMENT A. Approved for public release.

Open access is a means by which research can be distributed free of cost or other barriers, and may remove restrictions on use & reuse.

Purpose is to overcome the subscriptions, site licenses or pay charges imposed by publishers.

Open access can be applied to all forms of published research, including journal articles, conference papers, theses, book chapters, monographs.

https://en.wikipedia.org/wiki/Open_access https://sparcopen.org/open-access/ http://research.library.gsu.edu/openaccess

Open Access https://en.wikipedia.org/wiki/Open_access https://sparcopen.org/open-access/ http://research.library.gsu.edu/openaccess

18DISTRIBUTION STATEMENT A. Approved for public release.

Creative commons licenses:

Public copyright licenses that allow free distribution of otherwise copyrighted works.

Used when authors want to give others the right to share or use works they have created

Several types of Creative Commons licenses; differ by conditions in the terms of distribution.

Released in December 2002 by Creative Commons (U.S. non-profit founded in 2001).

https://en.wikipedia.org/wiki/Creative_Commons_license https://en.wikipedia.org/wiki/Creative_Commons https://creativecommons.org/

Creative Commons https://en.wikipedia.org/wiki/Creative_Commons_license https://en.wikipedia.org/wiki/Creative_Commons https://creativecommons.org/

19DISTRIBUTION STATEMENT A. Approved for public release.

Practice of offering people the right to freely distribute copies and modified versions of a work.

Form of licensing that may be applied to software, documents, art.

Author must give every person who receives a copy of the work permission to reproduce, adapt, or distribute it, on the condition that any copies of adaptations are bound by the same license.

Author retains some rights under copyright law- the work in not in the public domain (no ownership of copyright)- copyleft allows the author to impose some restrictions.

https://en.wikipedia.org/wiki/Copyleft https://www.copyleft.org/

Copyleft https://en.wikipedia.org/wiki/Copyleft https://www.copyleft.org/

20DISTRIBUTION STATEMENT A. Approved for public release.

Origin- “…citizens deserve easy access to the results of scientific research their tax dollars have paid for.”

Policy memorandum released February 22, 2013 by the White House Office of Science and Technology Policy.

Directs all Federal agencies “with more than $100 million in R&D expenditures to develop plans to make the published results of federally funded research freely available to the public within one year of publication and requiring researchers to better account for and manage the digital data resulting from federally funded scientific research.”

https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp /ostp_public_access_memo_2013.pdf

Public Access initiative https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf

21DISTRIBUTION STATEMENT A. Approved for public release.

Copyright Exists- No Government Rights

• Government-authored works (incl. journal articles, conference papers)= NO

• Joint-authored works (articles, papers)= NO

• Works with unlimited rights (contractor or grantee works;

technical reports)= NO

• Items used with permission (received under agreement or exchange)= NO

• Contractor/grantee-authored works= NO

• All other copyrighted works; no government rights= YES

“NO”- full text displays

“YES”- no full text

Values in TEMS

22DISTRIBUTION STATEMENT A. Approved for public release.

The problem with this approach is that copyright exists for all of these items, even the ones where you answer “No”

In TEMS there is no way to distinguish between unlimited rights (public release and public access) vs. government purpose rights (public release but limited access)

Only captures scenarios where there are no government rights (but those items should not be added anymore)

Values in TEMS

23DISTRIBUTION STATEMENT A. Approved for public release.

Public release and public access: [unlimited rights]

• Government works

• Government published

• Copyrighted works with *unlimited rights* license or open access

• Other contracted works with unlimited rights (e.g. distribution A technical reports)

Public release, but limited access: [government purpose rights]

• Government-authored works, 3rd party published (incl. journal articles, conference papers)

• Joint-authored works (articles, papers)

• Items used with permission (received under agreement or exchange)

• Contractor/grantee-authored works, 3rd party published

Public release, no access: [no government rights]

• All other copyrighted works; no data rights (no authorship, no funding)

Result of data rights

24DISTRIBUTION STATEMENT A. Approved for public release.

Document marked copyright with government data rights assertions; published by a fully-funded government organization- unlimited rights

Document marked copyright with government data rights assertions;

acknowledges government funding, published by a commercial/academic publisher- government purpose rights

Document marked copyright published by a commercial/academic publisher with open access/Creative Commons license- unlimited rights

Documents marked copyright published by a commercial/academic publisher with *no* government authors, or *no* government funding- no data rights

Documents that don’t have markings- has the item been commercially published?

Can it be found via an internet search? Is it an older document?- need to consider- publisher, funding, and author(s), then data rights and distribution can be determined

Document scenarios

25DISTRIBUTION STATEMENT A. Approved for public release.

Articles freely available through a third party, e.g. Google Scholar, with non-copyrighted metadata available- assume the work is copyrighted; if there is a government/military author or government funding= government purpose rights; otherwise= no data rights, do not link to a third party provider

Documents published in military or other government periodicals or monographs- unlimited rights

TATs or CATs with distribution A- unlimited rights (as long as there is no 3rd-party content)

Unpublished papers (esp. journal article manuscripts)- government purpose rights

Documents created by an IAC with distribution A- unlimited rights

Document scenarios

26DISTRIBUTION STATEMENT A. Approved for public release.

Backup slides

Additional information

27DISTRIBUTION STATEMENT A. Approved for public release.

Defense Federal Acquisitions Regulation Supplement- Subpart 227.71- Rights in Technical Data, section 227.7103-4 License rights

(a) Grant of license The Government obtains rights in technical data, including a copyright license, under an irrevocable license granted or obtained for the Government by the contractor. The contractor or licensor retains all rights in the data not granted to the Government. For technical data that pertain to items, components, or processes, the scope of the license is generally determined by the source of funds used to develop the item, component, or process. When the technical data do not pertain to items, components, or processes, the scope of the license is determined by the source of funds used to create the data.

Section 227.7103-5 Government rights https://www.acq.osd.mil/dpap/dars/dfars/html/current/227_71.htm

Data Rights- Contracted works

28DISTRIBUTION STATEMENT A. Approved for public release.

Section 227.7103-9

(a) Copyright license

(1) The clause at 252.227-7013, Rights in Technical Data-

Noncommercial Items, requires a contractor to grant or obtain for the Government license rights which permit the Government to reproduce data, distribute copies of the data, publicly perform or display the data or, through the right to modify data, prepare derivative works. The extent to which the Government, and others acting on its behalf, may exercise these rights varies for each of the standard data rights licenses obtained under the clause.

https://www.acq.osd.mil/dpap/dars/dfars/html/current/227_71.htm#227.7103-9

License rights https://www.acq.osd.mil/dpap/dars/dfars/html/current/227_71.htm#227.7103-9

29DISTRIBUTION STATEMENT A. Approved for public release.

• Unlimited rights

– The rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

• Government purpose rights

– Offers a way for contractors to exploit intellectual property commercially while the Government also benefits from its use. [found in cases of join government/private funding]

• Limited rights

– Means the Government may use the data within the government but not release the data outside of the government. [found in cases of private or independent funding]

• Specifically negotiated license rights

– When standard license arrangements are modified between contractor and Government and the exact terms are spelled out in a specific license agreement unique to that application.

Definitions found in 252.227-7013 Rights in Technical Data--Noncommercial Items https://www.acq.osd.mil/dpap/dars/dfars/html/current/252227.htm#252.227-7013

Government rights https://www.acq.osd.mil/dpap/dars/dfars/html/current/252227.htm#252.227-7013

30DISTRIBUTION STATEMENT A. Approved for public release.

Unlimited rights This material is declared a work of the U.S Government and is not subject to copyright protection in the

United States. (journal article)

The contributor hereby certifies the contribution to be a work of the U.S. Government, which has been prepared by an officer or employee of the U.S. Government as part of his or her official duties, and therefore precluded from copyright protection under 17 USC sec 105. The contribution is in the public domain by operation of laws of the United States of America (from Military Medicine)

This article is the work of a U.S. Government employee, and therefore, is a work of the U.S. Gvoernment and is not protected by copyright law. (journal article)

No copyright claim is made to original U.S. Government works, or works produced by employees of any Commonwealth realm Crown government in the course of their duties (American Chemical Society journal)

Delivered to the U.S. Government with Unlimited Rights, as defined in DFARS Part 252.227-7013 or 7014 (Feb 2014). Notwithstanding any copyright notice, U.S. Government rights in this work are defined by DFARS 252.227-7013 or DFARS 252.227-7014 as detailed above. Use of this work other than as specifically authorized by the U.S. Government may violate any copyrights that exist in this work. (from MIT technical paper)

This work was funded in whole or in part by (federal agency) under U.S. Government contract (number), and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in these documents to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.

Examples of data rights language

31DISTRIBUTION STATEMENT A. Approved for public release.

Government Purpose rights The U.S. Government has a non-exclusive license rights to use, modify, reproduce, release, perform, display, or disclose these materials, and to authorize others to do so for US Government purposes only. All other rights reserved by the copyright holder. (from IEEE conference proceedings)

This work is copyrighted. The United States has for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license. Any other form of use is subject to copyright restrictions (ACM conference paper)

This work was funded in whole or in part by the Department of the Air Force (contract or grant number). The U.S. Government has for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license to use, modify, reproduce, release, perform, display, or disclose the work by or on behalf of the U.S. Government.

32DISTRIBUTION STATEMENT A. Approved for public release.

Open Access This is an open access article under the CC-BY license. (Elsevier journal)

This is an open access article published under an ACS AuthorChoice License, which permits copying and redistribution of the article or any adaptations for non-commercial purposes. (American Chemical Society journal)

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited (journal article)

33DISTRIBUTION STATEMENT A. Approved for public release.

Monica Butteriss

DTIC-CA

571-448-9838

Monica.e.butteriss.civ@mail.mil

Contact information mailto:Monica.e.butteriss.civ@mail.mil