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Review of policy on intellectual property rights

  • To: Multiple recipients of list <comcifs-l@iucr.org>
  • Subject: Review of policy on intellectual property rights
  • From: Brian McMahon <bm@iucr.org>
  • Date: Fri, 23 Jul 1999 16:10:13 +0100 (BST)
Intellectual Property Rights
----------------------------

Dear Colleagues

I had anticipated putting together some remarks on CIF and the IUCr's
intellectual property rights in a leisurely fashion and presenting them for
gentle consideration well in advance of the Glasgow meeting. Unfortunately,
it hasn't worked out quite that way owing to pressure of many other
commitments.

Nevertheless, it still seems useful to run through what I intend to say
in Glasgow, and to invite discussion before then on any contentious aspects
of the developments suggested below. Much of the impetus for this work
has come from Herbert Bernstein, with input from Syd Hall and the
IUCr Executive Secretary, Mike Dacombe, who are warmly thanked. More
detailed discussions can be found at the URL
http://www.iucr.org/~bm/lists/iprwg/, which requires the username iprwg
and password sund@nce for access.

What would be helpful in advance of our meetings (both closed and open) would
be responses (especially if critical) to the following items:

(a) Should the IUCr pursue registered trademark protection for STAR File, CIF
    and other such designators? If so, what should go in the full list? I
    nominate the following acronyms or designators:
            STAR File
            CIF
            CBF
            mmCIF
            pdCIF
            imgCIF
            DDL
(b) What is your response to the frequently-asked questions (FAQ) document
    in section (6) below: is it a good idea? Are there elements of it which are
    wrong or could be better expressed (and if so, how)? Are there any
    volunteers for extending the FAQ to general and technical questions?
(c) Do you approve the revised statement of policy drafted in section (5)
    below? If not, what are your objections?
(d) Do you approve or disapprove of the move towards encouraging a standard
    open-source style of software license?
(e) Are there any other concerns that are not being properly addressed here?

What we really need is a feeling of consensus before the COMCIFS Chair meets
the IUCr Executive Committee (a meeting timetabled in advance of the COMCIFS
meetings) that will allow him to explain to the Executive the developments we
plan to undertake in the area of defending intellectual property rights while
sufficiently encouraging CIF development. I should mention that the Finance
Committee has already approved the principle of seeking trademark registration
(in its meeting in Copenhagen during the spring). The final wording might need
discussion before or during our business meeting, but we should aim to arrive
at that meeting with only the i's and t's to be dotted and crossed.

1. Purpose of defending IPR
---------------------------
The IUCr developed CIF to preserve structural data in a format that could
reliably be transferred across computer systems and be interpreted
unambiguously and in perpetuity. Its most clearly defined policy with
respect to CIF is to *encourage* its adoption as a *standard* within the
scientific community. Both emphasised words have equal weight. It is to
safeguard the integrity of the standard that the IUCr has publicly asserted
its ownership of the underlying intellectual rights; but an arid standard
that no-one uses is of no benefit. In an increasingly litigious age, there
are individuals who have been *discouraged* from adopting and working with
files in CIF format, and this runs entirely counter to the Union's
objectives. So it seems appropriate to review and if necessary modify the
wording of the official policy on the use of CIF to reassure the community
that their interests are best served by adopting its use wholeheartedly.

2. Existing rights protection
-----------------------------
The following legal devices have been already been invoked to establish the
status of CIF and its underlying STAR file structure.

(a) The IUCr has secured a patent enforceable under British jurisdiction on the
invention of the STAR specification.

Initial patent applications in USA, Europe and Japan have been withdrawn.
The possession of a British patent (i) is a token of earnest in the
protection of the claimed invention, and (ii) could be used as evidence
of priority if it were necessary to reinstate a patent application
as a counter-claim in another jurisdiction. The sole purpose and function of
the STAR patent is to declare rights of ownership in the data exchange
mechanism so as to secure right of use in the crystallographic community.
There is no intention to exploit the invention for financial gain.

While other parties wishing to use the STAR file format for their own data
encapsulation should be aware of its provenance and should for the sake of
propriety inform the IUCr of  that wish, the IUCr will not restrict use of
the STAR file format except to prevent its use by third parties in ways
detrimental to the free exchange of crystallographic information.

(b) The IUCr has published and claimed copyright on a set of restrictions to 
the generalised STAR syntax.

(c) The IUCr has published and claimed copyright on a number of machine-readable
dictionary files containing the descriptions of recognised character
strings ("token") with specific meaning in files claiming to be CIF.

Copyright law is complex, obscure and varies across jurisdictions. The
declarations of copyright should be made against some appropriate
legislative instrument, such as the UK Copyright, Designs and Patent Acts
(1988). It is debatable whether the CIF syntax restrictions could be
effectively defended in a copyright lawsuit, and it is not clear that this
is the proper instrument to enforce such restrictions.

The copyright on the CIF dictionaries is much more straightforward: these
are documents with identifiable content. However, an author of a "local"
dictionary (i.e. one defining datanames prefixed with a string registered
with the IUCr) would hold the copyright on that dictionary.

(d) It has established a Committee answerable to the Executive Committee of
the Union (COMCIFS), vested with the responsibility of maintaining existing
and proposed new dictionaries and attendant documentation in perpetuity.

The main purpose of the copyright claims is therefore to establish the
ownership of the creative content of the dictionaries, and that is
reinforced by their endorsement by COMCIFS.

These legal instruments are not intended to, nor could they effectively,
prohibit, hinder or restrict the development of software reading or writing
CIF data for the purpose of archival, transmission or retrieval of
crystallographic information. Neither do they confer upon the IUCr rights of
ownership to the content of CIFs.


3. Extending the scope of legal protection: trademarks
------------------------------------------------------
One of the essential elements of promoting and defending a standard is that
any object claiming to adhere to that standard must be identifiable as
such. For this reason, the IUCr is proposing to seek registration of "CIF"
and certain other terms or acronyms as trade or service marks. Then a file
can claim to be a CIF only if it can meet the criteria establishing its
identity as a particular type of object reserved for trade (or, more
relevantly, service) purposes by the rights owner.

There are two issues here. The first is that "CIF" is an acronym already used 
in other fields - there is a widespread CAD graphics file format, and various 
other less familiar manifestations. It is therefore possible that there may
be legal obstacles in the attempt to register such trademarks. However,
trademark legislation allows for the reservation of distinctive marks or
names in specific contexts; and a successful application could have the
benefit of removing confusion by requiring that users of the acronym in
domains where confusion is possible must explicitly acknowledge its
crystallographic provenance when that is appropriate.

The second issue (technical rather than legal) has to do with the provision
of a means to validate that a file claiming to be a CIF (or mmCIF, imgCIF, CBF 
or other registered trademark) may actually be considered as such. For example, 
in the TeX world, there is a program called TRIP that must produce identical
output from any modified version of TeX if that version is still to be called
TeX. Perhaps something similar should be considered for CIF and friends. As a
first step in this direction, I that Star_Base and vcif be
advertised as reference syntax validators for STAR File and CIF respectively,
while CYCLOPS be the reference validator for data names. However, we should
consider whether additional software might be commissioned to validate at a
deeper level against dictionaries; and we might consider the more thorny
question of whether validation is required of the physical meaning of the
content; in other words, if a file contained an _atom_site loop with a random 
series of entries (i.e. not corresponding to a real structure), could or
should the resultant file be able to be called a CIF?


4. Licensing issues
-------------------
If we protect the intellectual property rights of the IUCr through patent,
copyright and trademark law, we run the risk of appearing protectionist and
frightening people away from any use or development of CIF. It is debatable to 
what extent that is a real concern. It seems to me that there is a distinction 
between writing a program and incorporating into it a series of subroutines
written as a library by someone else, and writing a program to input and
subsequently process data from a file described by someone else's
specification. However, debating the fine point of distinction may happily
and lucratively keep lawyers employed, but does not necessarily help us
towards our purpose of promoting development and dissemination of tools
for CIF.

Herbert has suggested that there is something to be gained from trying to
promote the Open Source software development model:

  (a)  You provide a copyright notice in your software
  (b)  You give people a limited license to copy, modify and distribute the
software which requires them to provide source and to impose the same
license terms upon those to whom they distribute copies.

He suggests "We are all used to the normal practice of copyright transfer
forms when we submit papers to journals.  We could set up a similar practice
for CIF software distributed through the IUCr web pages, and then couple an
IUCr Software Public License Agreement to distribution of that software."

The intention would be to phrase the license in such a way that it does
indeed encourage use - and reuse - of code for the common purpose.


5. Revision to policy document
------------------------------
The following suggested redraft of the IUCr policy on the use of CIF/STAR
(from Herbert and Syd) tries to address the concerns (especially of commercial
users) that the IUCr has interests in CIF that are restrictive.

------------------------------------------------------------------------------

                               The IUCr Policy
                                     on
           the Use of the Crystallographic Information File (CIF)


   The Crystallographic Information File (Hall, Allen & Brown, 1991) is,
   as of January 1992, the recommended method for submitting structural 
   publications to Acta Crystallographica. The International Union of
   Crystallography (IUCr) holds the Copyright on the CIF, and has applied
   for Patents on the STAR File syntax which is the basis for the CIF
   format.

   CIF and STAR are service marks and trade marks of the IUCr.  It is
   the intention of the IUCr that these marks shall only be used to
   describe programs and data that conform to STAR and CIF standards
   as described in IUCr documentation in effect as of the time of
   release of such programs and data.

   It is a principal objective of the IUCr to promote the use of CIF for
   the exchange and storage of scientific data.  The IUCr's sponsorship of
   the CIF development was motivated by its responsibility to its
   scientific journals, which set the standards in crystallographic
   publishing.  The IUCr intends that CIFs will be used increasingly for
   electronic submission of manuscripts to these journals in future.  The
   IUCr recognises that, if the CIF and the STAR File are to be adopted
   as a means for universal data exchange, the syntax of these files must
   be strictly and uniformly adhered to. Even small deviations from the
   syntax would ultimately cause the demise of the universal file
   concept.  Through its Copyrights and Patents the IUCr has taken the
   steps needed to ensure strict conformance with this syntax.

   The IUCr coordinates the creation and distribution of various
   Data Dictionaries which assist in the creation and validation
   of CIF or STAR files appropriate to certain domains of knowledge.
   The IUCr distributes software created by the IUCr and by others which
   has proven useful in the creation, validation and application of CIF
   and STAR files. These dictionaries and software may be obtained from
   the IUCr web page (http://www.iucr.org) or by contacting the IUCr Office
   at 5 Abbey Square, Chester CH1 2HU, England.

   The IUCr policy on the use of the CIF and STAR File processes is as
   follows:

    1. CIFs and STAR Files may be generated, stored or transmitted,
       without permission from or payment to the IUCr, provided
       all of the following conditions are met.

         1.1.  Any file serving as a CIF or STAR file must strictly adhere
         to the relevant syntax and dictionary definitions as
         promulgated by the IUCr until the date of creation.

         1.2.  Any file used as a Data Dictionary in conjunction with 
         CIF or STAR files must strictly adhere to the relevant syntax
         and dictionary definition languages as promulgated by the IUCr
         on the date of creation, and must not contain definitions
         which conflict with Dictionaries created by or approved by the IUCr.

         1.3.  No action may be taken by reason of the generation, storage
         or transmission of CIFs which will compromise IUCr control over the
         definition of CIF and STAR.

       In particular, when CIF or STAR files are generated, stored or
       transmitted for profit or commercial gain or for any other purpose
       whatsoever, no action may be taken to establish a trade mark,
       service mark or patent which would inhibit the IUCr in its free
       use of CIF and STAR as service marks and trademarks, or in the
       creation by the IUCr or by any other party of CIF and STAR files.

    2. Computer software may be developed for use with CIFs or STAR
       files, without permission from or payment to the IUCr, provided
       all of the following conditions are met.

          2.1.  Any portion of the software which purports to
          read CIF or STAR files will read any file which conforms
          to the relevant CIF and STAR syntax and dictionary
          definitions as promulgated by the IUCr for the stated
          domain of knowledge until the date of creation of the
          software.

          2.2.  Any portion of the software which purports to write
          CIF or STAR files will write files which conform
          to the relevant CIF and STAR syntax and dictionary
          definitions as promulgated by the IUCr for the stated
          domain of knowledge until the date of creation of the
          software.

          2.3.  The complete text of this policy shall be included
          in the documentation of the software.

          2.4.  No representation shall be made that the IUCr has
          approved of or is in any respect responsible for the
          performance of the software.

          2.5.  No action shall be taken by reason of the creation
          of the software or use of the software which compromises IUCr
          control over the definition of CIF and STAR.    

          2.6.  If software is publicly claimed to read or write CIF
          and STAR files, the IUCr shall have the right to use, examine
          and test that software without charge to the IUCr in order
          to verify or dispute the accuracy of such claims.

    3. For cases not clearly and unambiguously covered by the first two
       paragraphs above, permission may be granted for the use of CIFs
       and STAR Files and for the distribution of CIF/STAR software,
       on written application to the IUCr Executive Secretary,
       2 Abbey Square, Chester CH1 2HU, England.  The nature, terms and
       duration of the licences granted will be determined by the
       IUCr Executive and Finance Committees.

   In summary, the IUCr wishes to promote the use of the STAR File
   concepts as a standard universal data file.  It will insist on strict
   compliance with the published syntax for all applications.

------------------------------------------------------------------------------


6 FAQs
------
While the above statement is intended to be the formal and unambiguous declaration
of IUCr policy, it is understood that there may be a need for informal
documentation, either to clarify the legalspeak for normal users, or simply to
reassure fellow crystallographers that they are dealing with well-intentioned
human beings.

Herbert has suggested, and I consider it a good suggestion, that there is much
to be gained by establishing a FAQ ("frequently-asked questions" document) to
provide informal guidance and information on CIF, and not just on legal
issues. However, Herbert has taken the initiative in drafting a FAQ which
touches on the legal and policy matters under discussion here, and so I include 
it for your information and approval.


------------------------------------------------------------------------------

                             CIF FAQ

What is this document?

  This is the CIF FAQ.  CIF stands for "Crystallographic Information File"
and FAQ stands for "Frequently Asked Questions", so this is a place where
you will find questions about the Crystallographic Information File that we
have been asked (or think we should have been asked), along with what we
hope are helpful answers.

Does this document replace the IUCr Policy on CIF?

  No.  This is just a good faith attempt to clarify the IUCr Policy on CIF
and  to gather other useful information about CIF.  If it seems to conflict
with what we have said in more formal documents, ask another question, and
we'll try to clarify the situation.  You may end up contributing another
question to this FAQ.

Will the IUCr Police come after me if I violate the IUCr Policy on CIF?

  No.  There are no IUCr Police.

What will the IUCr do if I violate the IUCr Policy on CIF?

  The IUCr will vigorously protect CIF and STAR as standards for our
community.  In most cases, we will try to talk to you and get you back on
the right track, but, if we must resort to legal action to protect the
interests of the community, we will do what we must.

What does it mean to "protect CIF and STAR as standards"

  We want you and your colleagues to be able to be confident that when you
receive a file and it is represented to you as being a CIF or a STAR file,
that it is, indeed a CIF or a STAR file.  So, if somebody starts
distributing files which are called CIF or STAR, but which don't comply
with the rules for making CIF or STAR files, and we know about it, we will
ask them to stop doing that.

  We want you and your colleagues to be able to be confident that when
you work with software that claims it reads or writes CIF or STAR files,
that indeed it does do that.  So if somebody produces what they claim to be
a CIF or STAR application, we want to be able to take a look at the program
and documentation and assure ourselves that it is.  If the program is in
the public domain, we can do that.  If somebody wants to do something more
restrictive, things can be worked out, but we have to be able to assure
ourselves and you that what claims to be a CIF or STAR application is,
indeed working with CIF or STAR.

  We will not permit any other organization to "capture" STAR or CIF and
try to ransom it back to the community.

  There is more that we can and will do, but these are the most important
parts.

What specifically about CIF and STAR will the IUCr protect?

  We will protect CIF and STAR as trademarks and service marks of the IUCr.
We will protect the IUCr STAR patent.  We will protect the copyright on the
various "public" CIF dictionaries and on the DDL's.  We will protect CIF
and STAR as effective standards for the community.

Will the IUCr collect license fees or royalties on CIF or STAR?

  Hypothetically speaking, we suppose it is possible that in some
arrangement for some commerical product involving CIF or STAR, there might
be grounds for the IUCr to collect a license fee or royalty for something,
so we don't want to totally rule out the possibility, but, in most cases
all we are trying to do is to get CIF and STAR to be widely and freely used
so that it is easier for our community to exchange data reliably.
Certainly, if you are putting out your CIF or STAR compliant application to
the world for free, we are not going to ask you to start charging money for
it so that you can pay the IUCr a license fee.

------------------------------------------------------------------------------

All and any feedback will be most welcome.

Brian

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