Should the Law Protect Outdated Business Models? (LEGAL ISSUES)

Article excerpt

A colleague and I were joking at lunch recently about the "all SOPA, all the time" media coverage of the proposed SOPA (Stop Online Piracy Act) legislation, the web blackout, and the various strident protests. We were trying to figure out the last time a copyright-related issue hit the media airwaves with such force and intensity (he thought during the Betamax lawsuits of the early 1980s, while I suggested the Recording Industry Association of America's anti-P2P campaign of the mid-2000s).

The only problem with the media focus on SOPA is that it overshadows other issues. Two cases in point are bills introduced in Congress that could have a significant impact on the open access (OA) movement and the availability of information about or the results of federally funded research. The first is a House bill: H.R. 3433, the Grant Reform and New Transparency (GRANT) Act, would impose new transparency requirements as part of the grant-funding process. The second and more controversial bill is also in the House: H.R. 3699, the Research Works Act, would eliminate any requirement that published, grant-funded research be made available through a public or an OA website.

Opposing Positions

The bills would result in seemingly opposing positions on making information related to federally funded research available to the public. Among the transparency requirements of the GRANT Act is a provision that copies of grant applications be posted on a federal agency website. This would increase the amount of information about grant recipients that is available to the public, but some say too much. On the other hand, the Research Works Act would prohibit the free or OAposting of published results of grant-funded research, presumably decreasing the amount of information available to the public.

The GRANT Act would improve merit-based selection processes and pre-aware evaluation requirements for the grant-award process; it would also minimize ongoing burdens so that successful grant applicants can apply for additional funding and have their previous information used. The GRANT Act also would establish a public website, maintained by the Office of Management and Budget (OMB), to "serve as a central point of information and provide full access for applicants for competitive grants." Grant-awarding agencies would also be required to use the OMB website to post information about the grants that they award, including the grant agreement, peer reviewers, documentation explaining the award decision, and a copy of the grant application.

Endangering American IP

While providing all this information could result in more effective public scrutiny of the billions of dollars grant funding awards each year, objections have been raised about the requirement that grant applications be posted. Grant recipients, and some members of Congress, have noted that the applications often contain proprietary intellectual property, including "hypotheses, novel experimental methods, and preliminary research findings." Many argue that posting this information could endanger American intellectual property and provide competitors in the U.S. and abroad with access to secure information.

Interestingly, the Research Works Act takes an opposite perspective in restricting public access to the results of grant-funded research. The brief proposal would restrict grant-funding federal agencies from adopting or implementing any plan that would authorize "network dissemination of any private-sector research work without the prior consent of the publisher" or a plan that would require the research work's author to agree to network dissemination of the work. …