I think people should remember that the federal government engages researchers with all kinds of activities involving all kinds of intellectual property law issues. As with research sponsored by NSF, NEH, DOD, EPA, NIH, and so on, researchers can be granted IP control of all types of data for varying periods of time, including permanent copyright in some cases.
The specific law cited by Ree Rodgers below simply says that the records are the property of the Federal Government. That does not mean that they are therefore available to anyone who asks for them at any time.
Since none of us know the details of how the agreement was negotiated, and _most_ of us are not lawyers, I suggest we refrain from giving legal advice about contract law in the federal system. I suspect that the federal lawyers who approved the first agreement have a better idea about how that works.
Cheers,
Tim
> On Aug 17, 2017, at 1:15 PM, Rodgers, Ree <[log in to unmask]> wrote:
>
> Hi, I heartily agree with the below and would like to add... The sentence: "I feel they have a right to work exclusively on "their" collection, but for how long?" I find really troubling for the following reasons: any data collected with Federal funds under a Federal permit is and remains the property of the U.S. Government (see 36 CFR Part 79.3(2); we must remember that Federal Archaeologists are public servants, not servants to a company or a colleague. This collection belongs to the public, and is being held to further knowledge about our shared past and as such should be at once available to any interested citizen.
>
> The timeframe is a bigger contractual issue that should be investigated because unless a lost city has been uncovered, I know of no Section 106 directed project that should take longer than 5 years to produce at least a working draft - yee gads....
>
> -----Original Message-----
> From: HISTORICAL ARCHAEOLOGY [mailto:[log in to unmask]] On Behalf Of Howard Smith
> Sent: Tuesday, August 15, 2017 7:45 AM
> To: [log in to unmask]
> Subject: [EXTERNAL] Re: Issues of Exclusive Use to Archaeological Data
>
> These are public artifacts, excavated from public land, and the public has a right to access them. No grant of exclusive use should exist unless there is some significant public good that comes about as a result. In this case, what is the public good?
>
> Moreover, I don't recall, off the top of my head, any statute that gives the government the authority to restrict access to collections to a single researcher(s). I seriously question whether the original grant of exclusive use was legal and certainly don't see grounds for extending what should never have happened in the first place.
>
> The idea that a researcher has a right to produce a final report before other archaeologists access their work is a matter of professional courtesy and ethics, not of law, as far as I can see.
>
>
> Sent from my iPad
>
>> On Aug 14, 2017, at 1:49 PM, Jim Gibb <[log in to unmask]> wrote:
>>
>> If the material was recovered from federal land, presumably the work was done under the terms of an ARPA permit which should stipulate conditions of permit approval, including the timeframe in which the permittees must submit a technical report. I would refer to that approved permit. The initial 5-year grant of exclusivity may not be consistent with the terms of the permit and, if it wasn't, an additional five years certainly isn't. I agree with Mike: more details necessary.
>>
>> Apart from the ethical issues, I can't imagine people lining up to use my data...wish they did. Most of us are still collecting our own, in part because using inadequately documented assemblages require so much work (we have to do somebody else's job before we can begin to do our own) and we are stuck with the decisions and mistakes of others.
>>
>> For that assemblage to truly have value, the people who recovered it have to get the report written.
>>
>> Here's my soapbox lecture for the day: Projects that exceed one season or one year in length, especially if there is a hiatus in fieldwork, should produce an interim report describing questions, methods, and results. Not only do such reports provide insurance should projects terminate unexpectedly, they help us assess and reassess our questions and methods before committing additional resources and destroying irreplaceable deposits. Scottie MacNeish's preliminary reports serve as a good model.
>>
>>
>>
>>
>>
>> Jim Gibb
>> Gibb Archaeological Consulting
>> Annapolis, MD
>> [log in to unmask]
>> 410.693.3847
>>
>>
>>
>>
>>
>> -----Original Message-----
>> From: Michael Trinkley <[log in to unmask]>
>> To: HISTARCH <[log in to unmask]>
>> Sent: Mon, Aug 14, 2017 3:39 pm
>> Subject: Re: Issues of Exclusive Use to Archaeological Data
>>
>> The problem with hypotheticals (which is essentially how the issue has been presented) is that there are always unstated issues and assumptions.
>>
>> For example, you observe that the work was federally funded, but go on to add that there was "great . . . effort on their part". Was this effort not fully compensated by the federal government? If it was a joint venture, that is different, but if it was a Section 106 project, then I don't really understand how their effort becomes an issue. And if it was a Section 106 project, did not the agreement (contract, MOA, whatever) specify the time period allowed to produce a report? And if a report has, in fact, been produced, but the researchers simply want to continue "looking at" the collection do they have the same proprietary level they might have prior to any publication? And if, after 5 years, no report has been issued, is there a reasonable belief that one will be issued in 9 years, 11 months? And does anyone else's use of the collection preclude the original researchers' continued analysis? Is there something so earthshattering that we need any talk of proprietary rights? Are the original researchers at the curatorial facility on a daily/weekly/monthly basis "using" the collection? Was there a plan for how the original 5 years of exclusive access was to be used - and was the plan followed?
>>
>> There seem to be far too many unaddressed issues here for anyone to specify an answer. In the absence of all this information, I can only say that I would find it difficult to defend the exclusivity of research paid for by the American taxpayer, particularly if no progress or publications were forthcoming after 5 years.
>>
>> Best,
>> Mike
>>
>> Michael Trinkley, Ph.D.
>> Director
>> Chicora Foundation, Inc.
>> PO Box 8664
>> Columbia, SC 29202-8664
>> 803-787-6910
>> www.chicora.org
>> Please consider the environment before printing this email.
>>
>> -----Original Message-----
>> From: HISTORICAL ARCHAEOLOGY [mailto:[log in to unmask]] On Behalf Of Mills, Robin
>> Sent: Monday, August 14, 2017 2:39 PM
>> To: [log in to unmask]
>> Subject: Issues of Exclusive Use to Archaeological Data
>>
>> Friends,
>>
>> I find myself in a position to allow or grant "exclusive use" to an existing collection in a federally-recognized museum repository. The folks in question were allowed a 5 year period of "exclusive use" which is about to expire. They are requesting another 5 years.
>>
>> The collection in question was wholly gathered by the researchers making the request, at great expense (federally supported) and effort on their part. The collection derives exclusively from federally managed lands.
>>
>> I feel they have a right to work exclusively on "their" collection, but for how long?
>>
>> The SAA website's "Principles of Archaeological Ethics" (Principle No. 5, Intellectual Property), indicates that "If there is a compelling reason, and no legal restrictions or strong countervailing interests, a researcher may have primary access to original materials and documents for a limited and reasonable time, after which these materials and documents must be made available to others."
>>
>> The SHA's Ethics Principles webpage is silent on this issue.
>>
>> So, the question is, How long is a "limited and reasonable time"? I seem to remember reading somewhere that someone suggested a timeframe not to exceed
>> 10 years, but I can't find that again.
>>
>> I'm inclined to grant the additional 5 years (for 10 years total), as the researchers actually are performing analyses and writing, and not just apparently "sitting" on the data.
>>
>> Your thoughts?
>>
>>
>> Best,
>>
>> Robin Mills
>>
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