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THE ROLE OF SCIENTIFIC AND TECHNICAL DATA AND INFORMATION IN THE PUBLIC DOMAIN

PROCEEDINGS OF A SYMPOSIUM

Julie M. Esanu and Paul F. Uhlir, Editors

Steering Committee on the Role of Scientific and Technical Data and Information in the Public Domain

Office of International Scientific and Technical Information Programs

Board on International Scientific Organizations

Policy and Global Affairs Division

NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES

THE NATIONAL ACADEMIES PRESS
Washington, D.C.



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Page i THE ROLE OF SCIENTIFIC AND TECHNICAL DATA AND INFORMATION IN THE PUBLIC DOMAIN PROCEEDINGS OF A SYMPOSIUM Julie M. Esanu and Paul F. Uhlir, Editors Steering Committee on the Role of Scientific and Technical Data and Information in the Public Domain Office of International Scientific and Technical Information Programs Board on International Scientific Organizations Policy and Global Affairs Division NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES THE NATIONAL ACADEMIES PRESS Washington, D.C.

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Page ii THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. Support for this project was provided by the Center for Public Domain (under an unnumbered grant), the James D. and Catherine T. MacArthur Foundation (under grant no. 02-73708-GEN), the National Library of Medicine (under purchase order no. 467-MZ-200750), the National Oceanic and Atmospheric Administration/National Weather Service (under an unnumbered purchase order), and the National Science Foundation (under grant no. GEO-0223581). Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the organizations or agencies that provided support for the project. International Standard Book Number 0-309-08850-X (Book) International Standard Book Number 0-309-52545-4 (PDF) Copies of this report are available from Board on International Scientific Organizations, 500 Fifth Street, NW, Washington, DC 20001; 202-334-2807; Internet, http://www7.nationalacademies.org/biso/. Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet, http://www.nap.edu. Copyright 2003 by the National Academy of Sciences. All rights reserved. Printed in the United States of America

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Page iii THE NATIONAL ACADEMIES Advisers to the Nation on Science, Engineering, and Medicine The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Wm. A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. Wm. A. Wulf are chair and vice chair, respectively, of the National Research Council. www.national-academies.org

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Page iv

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Page v Preface The body of scientific and technical data and information (STI) 1 in the public domain in the United States is massive and has contributed broadly to the economic, social, and intellectual vibrancy of our nation. The “public domain” can be defined in legal terms as sources and types of data and information whose uses are not restricted by statutory intellectual property laws or by other legal regimes, and that are accordingly available to the public for use without authorization. In recent years, however, there have been growing legal, economic, and technological pressures that restrict the creation and availability of public-domain information—scientific and otherwise. It is therefore important to review the role, value, and limits on public-domain STI. New and revised laws have broadened, deepened, and lengthened the scope of intellectual property and neighboring rights in data and information, while at the same time redefining and limiting the availability of specific types of information in the public domain. National security concerns also constrain the scope of information that can be made publicly available. Economic pressures on both government and university producers of scientific data similarly have narrowed the scope of such information placed in the public domain, thus introducing access and use restrictions on resources that were previously openly available to researchers, educators, and others. Finally, advances in digital rights management technologies for enforcing proprietary rights in various information products pose some of the greatest potential restrictions on the types of STI that should be accessible in the public domain. Nevertheless, various well-established mechanisms for preserving public-domain access to STI—such as public archives, libraries, data centers, and ever-increasing numbers of open Web sites—exist in the government, university, and not-for-profit sectors. In addition, innovative institutional and legal models for making available digital information resources in the public domain or through “open access initiatives” are now being developed by different groups in the scientific, educational, library, and legal communities. In light of these rapid and far-reaching developments, the Office of International Scientific and Technical Programs organized the Symposium on the Role of Scientific and Technical Data and Information in the Public Domain. The symposium was held on September 5-6, 2002, at the National Academies in Washington, D.C. The meeting brought together leading experts and managers from the public and private sectors who are involved in the creation, dissemination, and use of STI to discuss (1) the role, value, and limits of making STI available in the public domain for research and education; (2) the various legal, economic, and technological pressures on the 1 STI has been used for several decades to refer to scientific and technical information, generally limited to scientific and technical (S&T) literature. For purposes of this symposium, it was used in the broader sense to refer also to scientific data so as to be comprehensive.

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Page vi producers of public-domain STI and the potential effects of these pressures on research and education; (3) the existing and proposed approaches for preserving the STI in the public domain or for providing “open access” in the United States; and (4) other important issues in this area that may benefit from further analysis. The main question that was addressed by the symposium participants was, What can the S&T community itself do to address these issues within the context of managing its own data and information activities? Enlightened new approaches to managing public-domain STI may be found to be desirable or necessary, and these need to be thoroughly discussed and evaluated. The primary goal of this symposium, therefore, was to contribute to that discussion, which will be certain to continue in many other fora and contexts. The symposium was organized into four sessions, each introduced by an initial framework discussion and then followed by several invited presentations. The first session focused on the role, value, and limits of scientific and technical data and information in the public domain. This was followed in the second session by an overview of the pressures on the public domain. Session three explored the potential effects on research of a diminishing public domain, and the final session focused on responses by the research and education communities for preserving the public domain and promoting open access to various types of STI. Different aspects of the issues discussed in this symposium have been addressed in some detail already in several reports previously published by the National Academies. In 1997, the report, Bits of Power: Issues in Global Access to Scientific Data, examined the scientific, technical, economic, and legal issues of scientific data exchange at the international level. 2 In 1999, another report, A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases, looked at the competing public and private interests in scientific data and analyzed several different potential legislative models for database protection in the United States from the perspective of the scientific community. 3 In 2000, the study, The Digital Dilemma: Intellectual Property Rights in the Information Age, discussed the conundrums of protecting intellectual property rights in information on digital networks. 4 And, in 2002, the National Academies released a report that investigated the resolving of conflicts in the privatization of public-sector environmental data. 5 Most recently, the National Academies' U.S. National Committee for CODATA collaborated with the International Council for Science (ICSU), the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the International Committee on Data for Science and Technology (CODATA), and the International Council for Scientific and Technical Information (ICSTI) to convene a related event, the International Symposium on Open Access and the Public Domain in Digital Data and Information for Science. 6 This meeting, held in March 2003 at UNESCO headquarters in Paris, focused on the same categories of issues as the September 2002 Public Domain symposium, except that it reviewed the existing and proposed approaches for preserving and promoting the public domain and open access to S&T data and information on a global basis, with particular attention to the needs of developing countries, and identified and analyzed important issues for follow up by ICSU in preparation for the World Summit on the Information Society. This publication presents the proceedings of the September symposium. The speakers' remarks were taped and transcribed, and in most cases subsequently edited. However, in several instances, the speakers opted to provide a formal paper. The statements made in these Proceedings are those of the individual authors and do not necessarily represent the positions of the steering committee or the National Academies. Finally, the committee also commissioned a background paper by Stephen Maurer, “Promoting and Disseminating Knowledge: The Public Private Interface,” which is available on the National Academies' Web site only. 7 2 See National Research Council (NRC). 1997. Bits of Power: Issues in Global Access to Scientific Data, National Academy Press, Washington, D.C. 3 NRC. 1999. A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases, National Academy Press, Washington, D.C. 4 NRC. 2000. The Digital Dilemma: Intellectual Property Rights in the Information Age, National Academy Press, Washington, D.C. 5 NRC. 2001. Resolving Conflicts Arising from the Privatization of Environmental Data, National Academy Press, Washington, D.C. 6 The Proceedings of the March open access symposium will be published in print and online by the National Academies Press in 2004. For additional information on the symposium, see the CODATA Web site at http://www.codata.org. 7 Copies of this paper are available on the National Academies Web site at http://www7.nationalacademies.org/biso/Maurer_background_paper.html or from the National Academies' Public Access Records Office.

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Page vii Acknowledgments The Office of International Scientific and Technical (S&T) Information Programs and the Board on International Scientific Organizations of the National Research Council of the National Academies wish to express their sincere thanks to the many individuals who played significant roles in planning the Symposium on the Role of Scientific and Technical Data and Information in the Public Domain. The Symposium Steering Committee was chaired by David Lide, Jr., formerly of the National Institute of Standards and Technology. Additional members of the Steering Committee included Hal Abelson, Massachusetts Institute of Technology; Mostafa El-Sayed, Georgia Institute of Technology; Mark Frankel, American Association for the Advancement of Science; Maureen Kelly, independent consultant; Pamela Samuelson, University of California, Berkeley; and Martha Williams, University of Illinois at Urbana-Champaign. R. Stephen Berry of the University of Chicago served as chair of the symposium. The Office of International S&T Information Programs also would like to thank the following individuals (in order of appearance) who made presentations during the workshop (see Appendix A for final symposium agenda): William A. Wulf, President, National Academy of Engineering; R. Stephen Berry, University of Chicago; James Boyle, Duke University School of Law; Suzanne Scotchmer, University of California, Berkeley; Paul David, Stanford University; Dana Dalrymple, U.S. Agency for International Development; Rudolph Potenzone, LION Bioscience; Bertram Bruce, University of Illinois, Urbana-Champaign; Francis Bretherton, University of Wisconsin; Sherry Brandt-Rauf, Columbia University; Jerome Reichman, Duke University School of Law; Robert Cook-Deegan, Duke University; Justin Hughes, Yeshiva University Cardozo School of Law; Susan Poulter, University of Utah School of Law; David Heyman, Center for Strategic and International Studies; Julie Cohen, Georgetown University School of Law; Peter Weiss, National Weather Service; Stephen Hilgartner, Cornell University; Daniel Drell, U.S. Department of Energy; Tracy Lewis, University of Florida; Jonathan Zittrain, Harvard University School of Law; Stephen Maurer, Esq.; Harlan Onsrud, University of Maine; Ann Wolpert, Massachusetts Institute of Technology; Bruce Perens, formerly with Hewlett Packard; Shirley Dutton, University of Texas at Austin; and Michael Morgan, Wellcome Trust. This volume has been reviewed in draft form by individuals chosen for their technical expertise, in accordance with procedures approved by the National Academies' Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report

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Page viii as sound as possible and to ensure that the report meets institutional standards for quality. The review comments and draft manuscript remain confidential to protect the integrity of the process. We wish to thank the following individuals for their review of selected papers: Hal Abelson, Massachusetts Institute of Technology; Bonnie Carroll, Information International Associates; Robert Chen, Columbia University; Joseph Farrell, University of California, Berkeley; Mark Frankel, American Association for the Advancement of Science; Oscar Garcia, Wright State University; Gary King, Harvard University; Monroe Price, Yeshiva University; Pamela Samuelson, University of California, Berkeley; and Carol Tenopir, University of Tennessee. Although the reviewers listed above have provided constructive comments and suggestions, they were not asked to endorse the content of the individual papers. Responsibility for the final content of the papers rests with the individual authors. Finally, the Office of International S&T Information Programs would like to recognize the contributions of the following National Research Council (NRC) staff and consultants: Paul Uhlir, director of International S&T Information Programs, was project director of the symposium and coauthored the discussion frameworks with Jerome Reichman, professor at Duke University School of Law and NRC consultant; Stephen Maurer served as a consultant on this project and prepared a background paper on “Promoting and Disseminating Knowledge: The Public Private Interface”; Subhash Kuvelker of the Kuvelker Law Firm also served as a consultant and moderated the pre-symposium online discussion forum; Julie Esanu helped to organize the symposium and served as the primary editor of the proceedings; and Amy Franklin and Valerie Theberge organized and coordinated the logistical arrangements and assisted with the production of the manuscript.

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Page ix Contents Session 1:    The Role, Value, and Limits of Scientific and Technical (S&T) Data and Information in the Public Domain     1    Discussion Framework Paul Uhlir, National Research Council 3     The Role, Value, and Limits of S&T Data and Information in the Public Domain in Society     2    The Genius of Intellectual Property and the Need for the Public Domain James Boyle and Jennifer Jenkins, Duke University School of Law 10     The Role, Value, and Limits of S&T Data and Information in the Public Domain for Innovation and the Economy     3    Intellectual Property—When Is It the Best Incentive Mechanism for S&T Data and Information? Suzanne Scotchmer, University of California, Berkeley 15     4    The Economic Logic of “Open Science” and the Balance between Private Property Rights and the Public Domain in Scientific Data and Information: A Primer Paul David, Stanford University 19     5    Scientific Knowledge as a Global Public Good: Contributions to Innovation and the Economy Dana Dalrymple, U.S. Agency for International Development 35     6    Opportunities for Commercial Exploitation of Networked Science and Technology Public-Domain Information Resources Rudolph Potenzone, LION Bioscience 52

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Page x     The Role, Value, and Limits of S&T Data and Information in the Public Domain for Education and Research     7    Education Bertram Bruce, University of Illinois, Champaign-Urbana 56     8    Earth and Environmental Sciences Francis Bretherton, University of Wisconsin 60     9    Biomedical Research Sherry Brandt-Rauf, Columbia University 65 Session 2:    Pressures on the Public Domain     10    Discussion Framework Jerome Reichman, Duke University School of Law 73     11    The Urge to Commercialize: Interactions between Public and Private Research and Development Robert Cook-Deegan, Duke University 87     12    Legal Pressures in Intellectual Property Law Justin Hughes, Yeshiva University Cardozo School of Law 95     13    Legal Pressures on the Public Domain: Licensing Practices Susan Poulter, University of Utah School of Law 99     14    Legal Pressures in National Security Restrictions David Heyman, Center for Strategic and International Studies 104     15    The Challenge of Digital Rights Management Technologies Julie Cohen, Georgetown University School of Law 109 Session 3:    Potential Effects of a Diminishing Public Domain     16    Discussion Framework Paul Uhlir, National Research Council 119     17    Fundamental Research and Education R. Stephen Berry, University of Chicago 125     18    Conflicting International Public Sector Information Policies and their Effects on the Public Domain and the Economy Peter Weiss, National Weather Service 129     19    Potential Effects of a Diminishing Public Domain in Biomedical Research Data Stephen Hilgartner, Cornell University 133

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Page xi Session 4:    Responses by the Research and Education Communities in Preserving the Public Domain and Promoting Open Access     20    Discussion Framework Jerome Reichman, Duke University School of Law 141     21    Strengthening Public-Domain Mechanisms in the Federal Government: A Perspective From Biological and Environmental Research Ari Patrinos and Daniel Drell, U.S. Department of Energy 161     22    Academics as a Natural Haven for Open Science and Public-Domain Resources: How Far Can We Stray? Tracy Lewis, University of Florida 165     23    New Legal Approaches in the Private Sector Jonathan Zittrain, Harvard University School of Law 169     24    Designing Public–Private Transactions that Foster Innovation Stephen Maurer, Esq. 175     New Paradigms in Academia     25    Emerging Models for Maintaining Scientific Data in the Public Domain Harlan Onsrud, University of Maine 180     26    The Role of the Research University in Strengthening the Intellectual Commons: the OpenCourseWare and DSpace Initiatives at Massachusetts Institute of Technology Ann Wolpert, MIT 187     New Paradigms in Industry     27    Corporate Donations of Geophysical Data Shirley Dutton, University of Texas at Austin 191     28    The Single Nucleotide Polymorphism Consortium Michael Morgan, Wellcome Trust 194     29    Closing Remarks R. Stephen Berry, University of Chicago 198 Appendixes 201     A    Final Symposium Agenda 203     B    Biographical Information on Speakers and Steering Committee Members 206     C    Symposium Attendees 215     D    Acronyms and Initialisms 225

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