comment from Creative Commons

[tvol]

I’m Timothy Vollmer, Public Policy Manager at Creative Commons. I’m commenting on behalf of Creative Commons (CC). Creative Commons is a 501(c)(3) nonprofit corporation dedicated to making it easy for people to share and build upon the work of others, consistent with the rules of copyright. CC provides standard, free, open licenses and other legal tools to mark creative work with the freedoms the creator wants it to carry. Creators have applied CC licenses to over 1.1 billion copyrighted works of every type: from photos and video, to research and data.

Thank you for the opportunity to submit comments on the draft policy to support improved access to custom software code developed for the Federal Government. We offer comments on a few policy considerations below.

Licensing considerations for custom code developed by U.S. government employees

The draft policy states that under 17 U.S. Code § 105 all software created by Federal Government employees as a “government work” is in the public domain and, accordingly, is not subject to copyright protection in the United States.

While Section 105 makes it clear that government works are not protected by copyright under U.S. law, the legislative history states that a similar provision does not necessarily extend to any foreign copyrights that may exist. Moreover, software (unlike other copyrightable content) is also patentable. There is no indication that the U.S. government has enforced, or has any intention of enforcing, its copyright abroad, but rather allows and even encourages the worldwide public to reuse its works freely, including software. The policy is also silent on patent rights that might apply.

It would be be useful to the U.S. public and the worldwide public that uses the valuable works developed and funded by the U.S. government to clearly mark this software as being in the public domain not only in the United States, but worldwide, and as a matter of both copyright and patent rights.

In order to meet this need, software created by Federal Government employees should be affirmatively released into the worldwide public domain. As mentioned above, unlike literary and other creative works, software may be protected by both copyright and patent rights. This means that in order to effectively and fully put software into the public domain, both types of intellectual property rights must be cleared if the public is to have confidence in their ability to reuse U.S. government-created software for any purpose. Thus, Creative Commons recommends that these government works should be released under the CC0 Public Domain Dedication, which waives any copyright that might apply, accompanied by a standard non-assertion pledge (nonassert) that indicates that the U.S. government will not to seek to enforce patent rights it may have against reusers of the software.

CC0 is already used or recommended by federal agency projects such as openFDA, 18F, and Project Open Data.

Licensing considerations for custom code developed by third parties and shared as Open Source Software as a part of the 20% rule

The draft policy states that the majority of software solutions used by the U.S. government are developed by third parties, and that software created on behalf of the Government by third parties is subject to copyright protection. As noted above, software may also be patentable.

The draft policy requires each covered agency to release at least 20 percent of its newly-developed custom code each year as Open Source Software (as defined by https://opensource.org/licenses). We think this is a useful way to promote reuse of custom-made third-party code. However, as stated below we believe the policy can and should go further and require that 20 percent be released into the public domain as a matter of both copyright and patent rights to enable the maximum reuse and benefit goals described below.

The policy notes that “Federal OSS can also contribute to economic growth and innovation as state and local governments, private sector companies, taxpayers, and others can reuse that code to develop products and services for the public.” In order to promote government-wide reuse of source code, and to enable broad reuse by the public who funds the development of this software, the policy should strongly favor OSS licenses that permit the greatest levels of freedom for reuse with the least number of restrictions. In one of the open licensing policy examples described below, we note that the U.S. government has adopted the Creative Commons Attribution license (CC BY) as the default under which digital education and training materials must be shared when developed with federal grant funds. This license grants to the public the permission to access and reuse the grant funded works for any purpose, subject only to the condition that attribution be given to the authors. While CC BY is suitable for content such as digital educational materials and is not recommended for software, a parallel principle—that of maximizing the ability of the public to freely use the work with few or no additional IP conditions—should be applied for custom software developed by third parties under the federal source code policy.

To best accomplish these objectives, Creative Commons recommends the U.S. government require that the 20% rule require that software developed by third parties with government funding be released to the public under under the CC0 Public Domain Dedication with an accompanying assertion that the third party will not enforce any patent rights it many have in the software. Non assertions (“patent pledges”) are well understood and used by commercial developers of open source software, including Red Hat, IBM, and many others.

To ensure that the “CC0 plus patent pledge” approach could be used, Creative Commons recommends the U.S. government modify the policy to specifically say so. While CC0 is not currently an “approved license” as defined by https://opensource.org/licenses. CC0 is compatible with all open source licenses because it does not impose any restrictions on further reuse.

We agree with the comment noted in #90 that OMB should consider setting a policy of “open by default” for custom software developed by third party developers rather than setting a minimum of 20% OSS as originally proposed in the source code policy.

Discovery of custom code developed by U.S. government employees and third parties under the 20% rule

The draft policy states that each covered agency must update, and thereafter keep up to date, an enterprise code inventory that lists all custom code developed for or by the agency. It says that the inventory “will indicate whether the code is available for Federal reuse, is available publicly as OSS, or cannot be made available due to a specific exception from this policy.” We recommend that the inventory clearly state the license under which the custom code is made available, and the inventory should permit users to filter by license, including “CC0 plus patent pledge” and OSI-approved licenses.

Extending open source licensing policy to Federal grants and cooperative agreements

This consultation asks to what extent would it be appropriate and desirable for aspects of this draft policy to be applied in the context of Federal grants and cooperative agreements.

We believe it is appropriate for the Federal government to adopt a default open licensing policy for software created as a result of Federal grants and cooperative agreements. This will ensure that the public is granted rights to freely use, share, and build upon custom software code developed using public funds.

There are related precedents that support the adoption of a default open licensing policy for software. In 2011, the U.S. Department of Labor (DOL) adopted an open licensing policy for the outputs of its $2 billion Trade Adjustment Assistance Community College and Career Training Grants Program. As a condition of the receipt of a grant under this program, grantees are required to license to the public all digital content created with the support of the grant under a Creative Commons Attribution 4.0 (CC BY) license. In addition to content such as digital education and training resources, DOL requires that all computer software source code developed or created with grant funds must be released under an open license acceptable to either the Free Software Foundation and/or the Open Source Initiative. DOL adopted this open licensing policy “to ensure that the Federal investment of these funds has as broad an impact as possible and to encourage innovation in the development of new learning materials.”

As of December 2015, the Department of Labor has adopted a department-wide open licensing policy, which covers all intellectual property developed under a competitive Federal award process. The U.S. Department of Education is considering a similar open licensing requirement for direct competitive grant programs.