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Should Government-Developed Software Be Copyrighted?

Magazine article Editor & Publisher

Should Government-Developed Software Be Copyrighted?

Article excerpt

Should government-developed software be copyrighted?

On the face of it, an amendment to the Stevenson-Wydler Act to allow copywriting of government-developed software is not something likely to electrify the next editorial board meeting.

In fact, most newsrooms would be hard pressed to see any connection between the amendment and their efforts to cover government.

However, this obscure proposed amendment to an equally obscure federal law illustrates the new challenges facing the press as government shifts from storing records on paper to storing them on computers.

The current version of the Stevenson-Wydler Technology Innovation Act makes it profitable for private companies to use discoveries that are jointly developed with government labs -- partnerships known as cooperative research and development agreements, or CRADAs.

The law permits the government to obtain patents on inventions resulting from CRADAs. Federal employees who help develop the inventions share in the royalties, and private industry receives a license on the government's patents to develop commercial products.

While the law allows the government to hold patents, it does not cover copyrights. Current copyright law prohibits the federal government from applying for copyright protection for its works, including software.

One-sixth of our country's scientists and engineers work at the over 700 government-run laboratories. Rep. Connie Morella (R-Md.) and Sen. John Rockefeller (D-W.Va.) reasoned that by encouraging the private sector to form CRADAs with these labs, this country could protect a valuable lead it has in computer technology. Their proposal would extend the Stevenson-Wydler Act to include copyright protection for CRADA-produced software. Copyrighting software would also prevent foreign countries from obtaining what is now public-domain software without paying royalties. These identical bills are now winding their way through Congress (see sidebar for text of bill).

Besides the economic benefits, there is the beauty of greater consistency in our laws. Currently, the inventions of CRADAs do receive patent protection under the 1986 amendment to the Stevenson-Wydler Act. It defies logic that the law allows a patent for the enhanced computer the CRADA develops but demands that the software enter the public domain.

But what does this bill have to do with a reporter's access to information?


Electronic data is rapidly becoming the dominant form of record keeping in the United States. The Federal government, at last count, had over 30,000 mainframes and mini-computers storing information on everything from crop reports to cancer research. This means that if reporters want to do their jobs, they will have to know how to obtain and use electronic records. While electronic information is similar to its paper counterpart, there are significant differences--differences which the bills by Morella and Rockefeller, despite their good intentions, do not address.

When a reporter requests a paper record from a government agency, there is an assumption that is so well accepted that it goes unstated: the information will be in English. This may seem so obvious that at first glance it looks like one of those fussy observations that only academics can love, but there is no accepted form for electronic records.

There are two different coding schemes (ASCII and EBCDIC), at least four different methods of recording information on magnetic tape, and a seemingly endless number of record formats. What is crucial to note here is that the form in which information is recorded on a tape is controlled by software. This makes it exceedingly easy for a government agency to keep its records secret by hiding behind the protection of the Morella-Rockefeller amendment.

With the help of a private company, an agency could develop database software that uses a proprietary scheme for storing information. …

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