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Not for Sale

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  1. Under what terms and conditions should the databases created at universities with government funding be made available? What are the salient factors that need to be considered?

  2. Aside from other laws/policies that may restrict dissemination (e.g., privacy, national security), should there be any restrictions on who can access the government-funded databases (i.e., category of user such as immediate research community, not-for-profit sector, commercial user, foreign user) and can discriminatory pricing be allowed? Why or why not?

  1. What principles and policies should govern interuniversity (or other not-for-profit) data access and use provisions? If stronger database IPR laws are adopted, should universities treat other not-for-profit users more favorably than the law requires? Why or why not?

  2. What kinds of rights should be transferred regarding data from databases owned by researchers/universities to publishers?

  3. In any new IPR regime what should be the scope of exemption regarding research, educational, library, and other “public-interest” uses of data sold by commercial publishers/vendors with respect to sharing and use, including transformative uses; integration into multiple-source data products or databases; dissemination to other parties within their own institution, or to other universities or not-for-profits; liability issues, generally; and other issues?

  4. What other important legal/policy issues should be considered in promoting access to and use of not-for-profit S&T data for the public interest? Examples of new legal provisions/policies for consideration include the following:

    1. Legislate the “first sale” doctrine in networked electronic environments in instances where technology allows no more than one user of a purchased intellectual work at a time.

    2. Legislate a depository library concept in which publishers to gain certain benefits must provide a digital copy of intellectual works and data sets to a national online collection that would then be accessible from public libraries across the nation. [See Geoffrey Nunberg (1998), “Will Libraries Survive?” The American Prospect, Nov/Dec, pp. 16-23.] Libraries might then “check out” these works to patrons as indicated in (a) above.

    3. Alternatively, if a licensing paradigm continues for access to online scientific and technical data, a portion of fees collected might be set aside (taxed) to subsidize access for schools and libraries in rural or underserved communities. (See Nunberg, 1998.)

    4. Development of standard licensing provisions and policies by libraries (see e.g.,

    5. Development of university policies that mandate that professors and researchers must maintain full nonexclusive copyright/sui generis right in any works or data sets developed in their capacity as university professors or researchers.

    6. Establishment of a “collection society” for S&T data.

    7. Other approaches?

The first issue, which will be addressed by Jerome Reichman, is whether databases created by state universities should be exempt from protection under new database intellectual

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