MS. RYAN: With regard to the first question, for the USGS, the principal benefit of the current legal and policy regimes was actually laid out fairly well by Justin Hughes when he made reference to the Office of Management and Budget (OMB) Circular A-130. If the public citizenry of the United States has paid for data once, they should not pay for data again.
This policy is very clear. As we enter into any cooperative agreements with either the private sector or our other public partners—state and local governments—we come to the table with that understanding right in the beginning, so there is no misunderstanding with any of our partners about what our responsibilities are as a federal agency. If others enter into an agreement with us regarding Earth and natural science information, then the expectation is that the data will, in fact, be available to all parties. Whether these parties are developers or conservationists, everybody on both sides of the fence gets equal access to these data right away.
For the USGS, the greatest benefit is just the clarity of the position with federal information. There is one exception, however. As we enter into agreements with Indian tribes, there may be an exclusion from uniform data release because of self-governance and self-determination policies and our federal trust responsibility to those tribes and their policies. So if there is any debate about how easily we can turn the data over and release data once the data have undergone quality assurance and quality control, it tends to get a little foggier in terms of our negotiations with Indian tribes.
DR. OSTELL: I agree with Ms. Ryan regarding the clearly voiced intent on the part of the U.S. government that the data should not be paid for twice. In fact, it is our job to make those data available in as many different ways as possible to as many different people as possible.
I would also like to expand on the current status of data referred to in a published article in a traditional scientific journal. The status is that these are separate issues. That is, the article can be copyrighted, but the data behind the figure in the article are not under copyright or under database restrictions of the publisher who published it. This is quite important because it allows us to build databases and refer to them as published literature, and there is a clear ability to implement this notion that the data should be publicly available, while allowing the author or the publisher to retain copyright.
The only reason I point out this differentiation between a database and a journal article is because of what publishers might do. For example, a scientific publisher, such as Elsevier, could ask for the underlying data as part of the article it is publishing and then would consider, under the this European Union Database Directive (E.U. Directive), that it would therefore own the database associated with the publication, which could be a problem. Under the current U.S. law, it is not a problem.
Finally, the notion that different types of published works are protected by copyright does give scientists needed flexibility when we encounter situations in which we don't get cooperation from the data providers, either because they are from another country or because they think they don't have to cooperate. We have the option of getting the data out of the table in a book, or something like that, and incorporating these data into some tool we have anyway. It is not the preferred method, but in a sense it provides an opportunity of last resort. Again, if that information now becomes protected as exclusive property instead of under copyright, this means that there is no escape in these cases and we are trapped.
DR. KAYSER: I certainly agree with Dr. Ostell's comments about the importance of being able to get information out of the literature. The way I look at this situation is that, under the current policy regimes, data compilations are not protected. We are relatively free to take