Herb, we could all debate for hours (perhaps days) over the fine points
of a contract clause! Our standard language is pretty similar to yours
although we are a little tighter on the number of days we offer for
publication review. It seems to me, however, that, as long as a clause
fits within an institution's policies,  there is probably no absolute
right or wrong on the fine points. Given the description of events in
the original email and the wording of the contract clause the sponsor
has in its agreement, I doubt seriously that the sponsor has any
interest whatsoever in "beneficial application by the general public" or
any other interests besides its own self-promotion. There are greater
issues in the contract clause than publication, for the sponsor states
that Brandeis cannot make any use of the information/data generated in
the study. This is pure and simple another way of saying it's a
work-for-hire which ought to be unacceptable to any educational
insititution. Not only can they not publish, but they cannot use their
own data in future research, in classroom teaching --  and god forbid if
a grauate student is involved, because that student would be prohibited
from using the data in his or her dissertation/thesis. If the sponsor is
a commercial concern, accepting a work-for-hire essentially is a
violation of an institution's non-profit status since it is potentially
doing work exclusively for a profit-making concern.  If I received that
clause I would ask the sponsor if it really wants a university to do the
work. If all the company wants is a contractor to do a project and say
nice things about it, there are any number of sleazy consultants out
their who would be glad to take their money.

Steve

"Herbert B. Chermside" wrote:
>
> VCU will not accept a clause like the first one which gives the sponsor the
> right to control the content of information we publish.  Of course we give
> them the right to review for inadvertent release of their proprietary
> information (don't let your results be defined as part of their proprietary
> information, which is a common dodge) and for potential intellectual
> property (we routinely give them a first option to negotiate for a license
> on IP developed).  Also, in some cases there may be a reason to delay
> publication (e.g., data collected as background for public policy
> decisions), but we always have a time certain for publication (e.g., "90
> days after X decision is made public, or, if said decision is not made
> public, 1 year after submission of report...).
>
> My usual publications clause is:
>
> "PUBLICATION. VCU represents that its purpose in obtaining the results of
> the research under this Agreement is to make the results available for use
> and beneficial application by the general public, and to further scientific
> and technological knowledge in the area of research covered hereunder.
> SPONSOR recognizes that during the course of this work, VCU, or its
> employees, may, from time to time, desire to publish information regarding
> scientific or technical developments made or conceived in the course of or
> under this agreement.  In order that public disclosure of such information
> will not adversely affect the patent interests of VCU or SPONSOR, or
> inadvertently reveal SPONSOR's confidential information, VCU shall submit a
> copy of the proposed publication to SPONSOR for review 30 days prior to
> release for publication.  Should SPONSOR so request in writing, VCU will
> withhold the publication for a further period of up to 60 days for the
> purpose of obtaining patent protection.  Further delays in publication
> shall be by mutual agreement as evidenced by a modification of this
> agreement.  Should SPONSOR so request in writing within 30 days, VCU will
> remove from the proposed publication that material which the SPONSOR
> identifies as confidential as defined in paragraph 8. VCU will acknowledge
> SPONSOR's support of this research in publications of results of the
> research."
>
> You should have a standard non-use of names clause to prevent a commercial
> concern from claiming or even implying endorsement by your institution.  I
> am almost always willing to make that flow two ways.  My typical language is:
>
> "USE OF THE PARTIES NAMES.  The SPONSOR and VCU agree not to use the name
> of the other party or any member of its staff in sales promotion, or
> advertising, or in any other forms of publicity without the written
> approval of an authorized representative of the said other party, except as
> required by law".
>
> Suggest you flat refuse the first clause, substituting a good publications
> clause, and do not let the non-use-of-names clause get cluttered with
> anything else.
>
> I welcome comments on improving my own language, all you good contract
> writers out there!
>
> Chuck
>
> At 02:02 PM 2/18/00 -0500, you wrote:
> >I'm currently working on an agreement where the  (private) sponsor has
> >included broad language restricting the university's right to "any use of
> >the project elements (i.e., data, finding, etc.).  Our PI is carrying out a
> >survey and evaluating the sponsor's program.
> >
> >Here is the language included in the agreement:
> >
> >"Notwithstanding the above, should xxx or anyone associated with xxx desire
> >to make any use of the project or any of its elements (including data,
> >findings, etc.), xxx shall first request sponsor's permission, and sponsor
> >shall review the request within a reasonable time.  Any such use shall be
> >subject to receiveing sponsor's prior written approval."
> >
> >The agreement also has the use of name clause which requires that both
> >parties obtain the other's permission in using the name of the other Party
> >in any advertising or public relations materials.
> >
> >The sponsor's key concern is that they need to control negative publicity
> >or dissemination which could be harmful to their project.  Our concern is
> >that (a) since the purpose is to evaluate the project, that our PI be able
> >to carry out a true evaluation (i.e., the sponsor cannot influence the PI's
> >findings/results) and (b) that the PI/university have the usual ability to
> >publish and use for his/her work and academic purposes.
> >
> >I thought that one way to get around this, is to instead suggest specific
> >language under the use of name (advertising and publicity) clause that
> >would protect both parties from negative publicity.
> >
> >I'd appreciate any ideas out there on this?
> >
> >Thanks,
> >Chris
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >Christine R. Woodroffe
> >Associate Director
> >Office of Sponsored Programs
> >Bernstein Marcus Building, Rm. 117
> >Mailstop 116
> >Email:  xxxxxx@brandeis.edu
> >Phone:  (781)736-2120
> >
> >
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> > subscription information and a web-searchable archive, are available
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> >
> Herbert B. Chermside, CRA
> Director, Sponsored Programs Administration
> Virginia Commonwealth University
> PO BOX 980568
> Richmond, VA  23298-0568
> Express Delivery Only:
>         Sanger Hall, Rm. 1-073
>         11th & Marshall Streets
>         Richmond, VA  23219
> Voice:  804-828-6772
> Fax     804-828-2521
> OFFICE e-mail   xxxxxx@VCU.EDU
> Personal e-mail xxxxxx@vcu.edu
> http://views.vcu.edu/ospa/
>
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--
Stephen Erickson
Director, Office of Research Administration
Boston College
McGuinn Hall 600
Chestnut Hill, MA 02467
Telephone:  617-552-3344
On-Campus Fax:  617-552-0747
Fax to My Computer: 413-895-8328

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