Dec 092015
 

ombCreative Commons USA has submitted a comment to the White House Office of Management and Budget for its review of Circular No. A-130: Managing Information as a Strategic Resource. Circular No A-130 establishes policies for the planning, budgeting, governance, acquisition, and management of the Federal government’s information resources. It was last revised in 2000, and the current revision aims to address new realities in today’s rapidly evolving, information-centered economy.

The comment from Michael Carroll and Meredith Jacob centers around two principles: “1) that information policy needs to deal with terms of use in addition to the terms of access, and 2) that publicly funded information resources should be made openly available for public use, not just public access.”

Click here for the comment as a PDF


 

Mr. Tony Scott
U.S. Chief Information Officer
Office of Management & Budget
1650 Pennsylvania Avenue, NW
Eisenhower Executive Office Building
Washington, DC 20503

December 5, 2015

Re: Proposed Revisions to Circular No. A-130, Managing Information as a Strategic Resource

Dear Mr. Scott,

We are writing on behalf of Creative Commons United States (CC-USA) to comment on the proposed revisions to Circular No. A-130, Managing Information as a Strategic Resource. Creative Commons United States is the U.S. affiliate of Creative Commons Inc., and operates in Washington, DC as a project of the Program on Information Justice & Intellectual Property at American University Washington College of Law.

Our comment has one main point: the proposal should be revised to be more explicit about why and how agencies should make Federal information resources reusable by the public. Paragraphs 4(c), (d), (k), and (l) of the proposal all assert that making Federal information resources usable by others furthers the national interest. However, the proposal does not provide direction to agencies to ensure that Federal information resources are usable in light of the application of the Copyright Act of 1976.

In that Act, Congress recognized the importance of reuse of Federally created information resources by enacting Section 105, under which all copyrightable works created by Federal employees within the scope of their employment are in the public domain in the United States (with the exception of certain standards created by employees of the National Institute of Standards and Technology). However, any other information resource that falls within the scope of Circular A-130 created by non-Federal employees is automatically subject to the restrictions imposed by Section 106 of the Copyright Act. The only way to make these resources fully reusable by the public is to require that non-Federal persons who create resources that fall within the scope of Circular A-130 with Federal funds grant sufficient permission to the public to make these resources reusable.

In sum, our comments on the proposed revisions to Circular A-130 reflect two broad principles implicit in the proposal: 1) that information policy needs to deal with terms of use in addition to the terms of access, and 2) that publicly funded information resources should be made openly available for public use, not just public access.

General Comments

In the current form and in the suggested revision, OMB Circular A-130 focuses almost exclusively on the terms of access to covered information resources, while the terms of use are equally important in maximizing public benefit from that access. Copyright applies to a large part of the Federal information resources, and therefore copyright law provides the default terms for the use of these resources.

The Copyright Act deals with the terms of use for Federal information resources created by Federal employees by placing these works directly in the public domain. Circular A-130, however, covers a larger category of Federal information resources, including those created under Federal grants, cooperative agreements, and contracts. To accomplish the goals of giving the public meaningful access and enabling broad reuse, revisions to Circular A-130 should add terms of use for Federal information resources. In the case of copyrighted content, those terms of use should take the form of a standard open license, such as the Creative Commons Attribution license. (See Appendix 1 for more information on the Creative Commons licenses.)

The approach of using open licenses to enable public use of Federal Information Resources has already been adopted by grant programs within the Federal government, such as the Department of Labor Trade Adjustment Assistance Community College and Career Training (TAACCCT) Grant Program. An agency-wide policy that would require information resources produced with direct grant funds to be openly licensed has been proposed at the Department of Education (Department of Education Open Licensing Requirement for Direct Grant Programs, 80 Fed. Reg. 67,672 (proposed Nov. 3, 2015) (to be codified at 2 C.F.R. pt. 3474).

Revision to the proposed amendments to Circular A-130 should: (1) identify that agencies will need to adopt policies that address the automatic application of copyright to information resources produced by non-Federal employees; (2) identify open licenses as a means that some agencies already have adopted to address legal barriers to access and use of information resources; and (3) require agencies to explain their reasoning for how they address the management of copyright in covered resources.

Comments on Specific Provisions

4. b. (p. 7, ln. 217) The government agency responsibility to openness should include facilitating public use of Federal Information Resources, not just public access.

4. d. (p. 7, ln. 226) Government commitment to making information resources “usable” should include removing or reducing legal as well as technical barriers to use and reuse.

5. d. 2. l. (p. 14, ln. 529) The design of information systems and information resources procurement should use standard open licenses to facilitate legal interoperability, access, and usefulness of information, in addition to considering technical interoperability and usefulness.

5. h. (p. 18, ln. 630) As written, this provision focuses on access to information and technical standards, without focusing on the legal restrictions that are automatically placed on information resources produced by non Federal employees. The section should be amended to include throughout the presumption that copyrightable Federal information resources created through grants, contracts, and cooperative agreements should be released under a standard open license.

5.h. 5. (p. 20, ln. 701) The list of agency principles should be amended to add “k) Considering open licenses as the default choice for copyrightable Federal information resources created under grants, contracts, and cooperative agreements, to facilitate public use of Federal information resources.”

Thank you for your consideration of our comments. Should you have any questions, please do not hesitate to contact us for more information.

Sincerely,

Professor Michael Carroll
Meredith Jacob
Creative Commons United States
Program on Information Justice & Intellectual Property
American University Washington College of Law
4300 Massachusetts Ave NW
Washington DC 20016
mjacob@wcl.american.edu
(202)274-4253

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