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In a Double Whammy for Bioinformatics, Sabo Bill Could Impact Software and Journals

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The proposed Public Access to Science Act, which calls for research funded by the US government to be released without copyright restrictions, could have consequences for the bioinformatics community that extend well beyond scientific publishing, according to some critics.

“If someone developed some kind of software that was a result of substantial federal funding, it would not have copyright according to this bill,” John Vaughn, executive vice president of the Association of American Universities, told BioInform last week.

In a July 23 letter to the bill’s sponsor, Representative Martin Sabo (D-MN), the AAU argued that “the bill would apply well beyond publication of journal articles, affecting copyrighted works such as computer software. Loss of copyright protection for such works would diminish the demonstrably effective incentives for universities and industry to collaborate in technology transfer, moving the results of fundamental research into commercial development for the benefit of society.”

The AAU noted in the letter that although it “strongly supports what we understand to be the objective of the legislation: to enhance public access to the results of federally funded scientific research,” it opposes the bill because the removal of copyright “is not only unnecessary for the achievement of this objective, but may also prove quite harmful to the nation’s research enterprise.”

As the bill is currently written, said Vaughn, “Tech transfer would be seriously impeded, because industry would be reluctant to invest a lot in developing some software if they couldn’t protect it.”

The bill may also hinder commercial firms that rely on the government’s SBIR, ATP, or CRADA programs to support their internal software development, according to some observers. If the bill were to pass, “companies will have little reason to enter into CRADA or SBIR arrangements, since they will not be able to have proprietary control over joint work,” said Gerald Barnett, director of IP management for the University of California, Santa Cruz.

Barnett also said that the elimination of copyright would impact software intended for distribution under free or open source models, which depend on copyright as the basis for their licensing contracts. Under the GPL and other open source models, Barnett said, copyright is the bargaining chip that provides access to the code based on the assumption that users will adhere to specific licensing terms that cover copying, distribution, and modification. “But if you don’t have a copyright, then the moment it’s released, people can do what they want with it, regardless of what you care about,” Barnett said.

Some argue that the long-term consequences of the Sabo bill could run counter to its intentions of promoting openness, as organizations turn to alternative mechanisms — such as patent protection, contract-based licensing models, or trade secrets — to protect their intellectual property. Software developers who don’t want to rely on patents to protect their work in the absence of copyright would be forced to turn to trade-secret agreements, in which users are granted access to software code only if they agree not to show it to anybody else — a model that Barnett described as a “secret club” that hampers the exchange of ideas.

Airing Concerns

The International Society for Computational Biology is taking an interest in the issue of whether the proposed bill applies to software, and is encouraging discussion among its members at its online forum (see URL, next page).

“We’re very concerned about the effect on software intellectual property. It’s our impression that the writers of the bill hadn’t realized the effect this would have on software,” said Barbara Bryant, ISCB secretary and a member of the Federation of American Societies for Experimental Biology’s public affairs executive committee.

As an associate member of FASEB, ISCB is participating in ongoing discussions between the umbrella organization and Congress regarding the Sabo bill. Like many FASEB member groups, ISCB publishes an official society journal — Bioinformatics — which makes it “sensitive to the need to have a working business model for a journal,” Bryant said, adding that most of ISCB’s income comes from conferences, and that it sees “very little profit” from the publication. Bioinformatics has already taken a step toward increased access by making its articles freely available a year after publication, Bryant said, noting that ISCB members “are very much proponents of having good access to scientific journals.”

ISCB’s additional concerns about the bill’s potential impact on software make it unique among FASEB’s member societies, however.

Although FASEB issued a letter to Representative Sabo on July 23 opposing the Sabo bill, Bryant said that ISCB “does not yet have an official position” on it. So far, she said, some ISCB members have supported the bill, while others have suggested it could hamper the development of commercial bioinformatics tools or lead to an upsurge in “bogus” bioinformatics software patents.

Bryant and others suggested that if the bill does indeed apply to software, it’s likely an unintended consequence of its very broad wording, which vaguely calls for the elimination of copyright for “works resulting from scientific research substantially funded by the federal government.”

“As I read it,” said Barnett, “the Sabo bill does not provide any exception for software or databases or web sites or poster sessions or instructional materials or photographs…The bill is badly — perhaps incompetently — drafted. What is meant by ‘scientific’ research?”

If this broad impact “is not the intention of Congressman Sabo, it could be easily fixed,” Vaughn noted. “But the way it’s written now, it would cover any works that are copyrightable.” The AAU has called for a formal study to analyze the full impact of the proposed bill as well as alternative models for scientific publishing. “Rather than trying to pass any kind of legislation that forces the system into any one particular direction, let’s try and undergo a collective effort to really think this through,” said Vaughn.

Bryant echoed Vaughn’s call for a cautious approach: “We should urge Congress to wait for the dust to settle before enacting a law that is far reaching, has poorly understood consequences, and with which we will be forced to live for many years.”

The Sabo bill was referred to the House of Representatives’ Judiciary Committee on June 26. At press time, no further action had been taken by congress. A meeting between FASEB and the Subcommittee on Courts, the Internet, and Intellectual Property to discuss the bill, originally scheduled for June 28, was cancelled. It had not yet been rescheduled as BioInform went to press.

Requests for comment from founders of the Public Library of Science, a non-profit organization that supports open-access scientific publishing and initially supported the bill, were not returned.

— BT

Additional Information on the Sabo Bill

 

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