i was in a meeting today where we were discussing the legalities surrounding open government-sponsored collaborative websites. that is, a NASA site facilitating open collaboration between NASA employees and non-NASA individuals or organization. what happens to intellectual property that comes out of that site? can the ideas be copyrighted? patented? should the ideas, content or inventions that come out of these collaborations be required to be openly accessible? can they be used commercially? and whatever decision is made, how is this communicated and enforced?

in general, we want to be as hands-off as possible. it should be up to groups and individuals collaborating on the site to decide when and if their content has gotten to the point that they want to (or that it justifies) being copyrighted or patented. however, as the sponsors of the time and resources that go into building and supporting this collaborative environment, NASA would expect a license to use any copyrighted or patented inventions or content.

this is exactly what happens with government contracts today where new IP is created. the contractor is given first rights to patent a new invention, but if they elect to pursue a patent, the government must be given an indefinite license to practice/use that invention.

although ‘indefinite right to use’ is a standard clause of government contracts (it’s a direct requirement of 1980’s Bayh-Dole act), what’s different here is that the content in question has been developed in a public forum. thus, it is already open content. given that, it’s most likely this collaborative site would encourage the use of creative commons licenses, which allow those who came up with an idea to retain their copyright but allow others certain rights as well– to use, re-use, and/or re-mix according to certain conditions you specify.

does retaining the right to use or practice IP created on this site require a new kind of CC license? it is a bit of a unique situation. traditional government licensing practices specify the indefinite right to use because otherwise the content/invention would be inaccessible to them. but open/public content under a CC license is available for anyone to use. so NASA shouldnt need to explicitly retain that right.

the gray area arises when people take ideas or projects from this site and patent or copyright them (or some close derivative). the current CC license that would ensure derivative content remains open is the share-alike license. however, what NASA would like to do is instead more closely approximate the traditional licensing scheme– requiring only that derivative works be made available to NASA, in order to leave room for commercialization or other forms of business development as appropriate. but then again, in some ways the viral nature of this requirement goes beyond even the current government licensing stipulations.

it seems to me that if it’s decided to only require that the government can continue to use the content as it exists on the site, then existing CC licenses are sufficient. however, if the government wants the rights to use content derived from the site, then a new kind of license may be required.

it’s exciting to look at new models for collaboration with and within government. what we’re talking about is an extension of traditional collaborative relationships, which are usually contractually bound and occur behind closed doors, by formalizing a way to instead collaborate in open and informal ways. its not clear to me if this situation, which will come up for other government agencies as well, does or does not require a new twist on the existing CC licenses. but having a way to formally support open collaboration with government would be a hugely exciting step.