tors to obtain copyrights are of much less significance since the copyright prevents only the copying of the work but does not control the use of the ideas expressed in the work. Unlike patents, which protect ideas, copyrights merely protect the manner in which an idea is expressed, but not the idea itself. Likewise, while it is theoretically possible that a key patent or patents could give one a clear advantage in a whole industry, the same is not true as to copyrighted works.

The key concept with which we are concerned is whether contractors should be allowed the right to publish, with copyrights, works produced under Government contracts or grants. The particular contract language chosen and related agency policies will, in many cases, have a direct effect on the extent of the dissemination of the work to the public.

Assuming there is no legislation dictating policy, several possible means are available to achieve dissemination. The Government Printing Office (GPO) is one choice, but has many drawbacks, depending on the type of work involved. The GPO is primarily a printer and not a publisher. It does not carry out promotional and marketing efforts to any major extent. Moreover, if part of the effort involves design and art work and other like considerations, the GPO version may be inadequate. If the work is in a multimedia form such as a textbook with accompanying slides and recordings, GPO is illequipped to produce the work.

Another alternative is to allow the contractor to take copyrights. In this case, the Government could take a license for its own purposes and/or restrict the contractor's rights to less than the statutory period.

A third alternative might be to solicit proposals on a work from various publishers rather than leaving it to the contractor, but there are many unanswered legal questions concerning the use of this alternative.

It is clear that such a variety of works are involved that any single policy to govern all situations is not realistically possible. In some instances, the preparation of a specific work by a Government contractor or grantee may be the primary object of the contract or grant. In other cases, a work may be prepared as a by-product of a research and development

contract. Moreover, the subject matter of the material may require differing copyright policies in order to achieve publication and dissemination. Educational materials and texts involve different considerations than specialized scientific works.

Section 14 of the draft legislation found at Appendix A contains a series of amendments which would accomplish Recommendation 14. Since these amendments also impact on other areas, additional drafting effort would be needed if it were desired to change only those aspects of the statutes impacting on the copyrights area.

Section 6 of the draft legislation at Appendix B would serve to accomplish Recommendation 15.

Administrative Policies

Recommendation 16. Establish an interagency task force under the lead of the Office of Federal Procurement Policy to develop and evaluate the implementation of a statement of Government copyright policy.

During the 1950's, most Government agencies began to allow grantees or contractors copyrights in works produced with Government financing where such works were a byproduct of the contract or grant. However, they would not do so where the work was the primary object of the contract.

More recently several agencies have developed policies allowing private publication and copyright of works produced as a primary object of their contracts or grants. Included among these are the Office of Education and the National Science Foundation. The Department of Defense will also, under some circumstances, allow private publication with copyright.3

Most agencies at a minimum allow copyrights in works that are a by-product of their contracts. The policy regarding works which are the primary object of the contracts is less clear cut. According to representatives of the publishing industry, some agencies still refuse to allow private publication on a copyrighted basis of works produced under their

3 See ASPR 9-204.1.

sponsorship. But unless suitable in-house efforts are undertaken, such material may lie dormant.

Despite the variety of approaches now found in the copyright area, little effort has been made on the administrative level to bring about uniformity. Nothing comparable to the Presidential Statement of Government Patent Policy and the related follow-up activities has occurred in the copyright area. The various agencies have developed their policies or failed to develop policies without any central guid

ance.

The time is not ripe for the development of a Government-wide statutory policy with respect to the copyright and publication of works developed under Government contracts. We believe that administrative flexibility to deal with a complex situation is needed. Legislation now on the books which hampers this should be repealed (Recommendations 14 and 15).

Although positive legislation is not practical at this time, there is a definite need for a more uniform administrative policy. A statement, similar to that issued by Presidents Kennedy and Nixon in the patents area, set

'Statement prepared by Curtis G. Benjamin for the Commission on Government Procurement at a public meeting sponsored by Study Group 6 on July 30, 1971.

BOB (now OMB) letter dated Dec. 3, 1964, to the Registrar of Copyrights does provide some rather flexible and broad copyright policies which could be used by executive agencies.

ting forth the general considerations involved and establishing policies for various classes of situations, would be helpful. Such a statement with follow-on review of its effects could minimize diversity and possibly lead to a legislative standard. It would also have the beneficial effect, even if completely uniform policies and practices cannot be established, of making clear the aims and considerations which should underlie agency policies. Those agencies which have refused, probably because of limited and isolated experience with publication problems, to recognize the need for private publication would be provided a framework for reviewing and modifying their policies in light of clearly established guidelines. Accordingly, we conclude that an interagency task force should be constituted under the lead of the Office of Federal Procurement Policy to aid in the development of such a statement and to monitor its implementation.

Legislation should be enacted making it clear that agencies have the authority to acquire private copyrights or interests thereunder. We see no reason why only the Department of Defense should have clear authority in this area. We take no position on the need to amend 17 U.S.C. § 8 since this appears to relate mainly to works prepared by Government employees.

6

10 U.S.C. § 2386 (1970).

CHAPTER 5

Summary

Even though our recommendations encompass a number of separate areas, several common themes run through them.

One of our goals has been to suggest improvements that would better encourage the utilization of the innovative and creative efforts that flow out of Government contracting. Thus the thrust of our recommendations concerning rights in inventions made under Government contracts is to promote a system that will encourage further development of such inventions. Likewise, it is our belief that out of an attempt to develop more uniform policies in the publication and copyright areas will emerge a system better structured to encourage the publication and dissemination of creative efforts.

A second theme that runs through many of our recommendations is the need to give adequate recognition in the procurement process to private innovative efforts, consistent with the goal of maintaining a competitive and economical procurement climate. Our recommendation to maintain the anti-injunctive aspects of the law as it pertains to the use by Government contractors of private patents, while at the same time making changes to give greater assurance to private patent owners that they will obtain adequate monetary compensation for the use of their inventions, is designed to meet this goal. Similarly, our recommendations for the development of a more uniform, Government-wide policy for the treatment of data submitted with proposals

and for the creation of a remedy for misuse of data are designed to enhance this goal.

A final common theme that runs through a number of our recommendations is the need for greater, albeit not always complete, uniformity. Indeed, this is a theme that has run through much of this Commission's work in all facets of the procurement process. Parochial differences in agency approaches to similar problems increase the complexity, and thus the costs, of the total procurement process, and offer little in exchange. Our recommendation for prompt and uniform implementation of the Presidential policy encompasses our conclusion that the repeal of certain inconsistent legislation may be needed and reflects our view that greater uniformity is both practical and desirable. We have recommended that interagency attempts be made to establish more uniform policies on technical data and copyrights. We recognize that there are legitimate reasons why some agencies might wish to take a DOD-type approach to rights-in-data while others might wish to follow a NASAtype approach. Nonetheless, we see no reason why standardized NASA-type, DOD-type, or other approaches, with alternate standard clauses, could not be developed.

In short, it is our belief that our recommendations will facilitate and serve the policy, proclaimed by the Congress when it created this Commission, of promoting economy, efficiency, and effectiveness in procurement.