A-19446, SEPTEMBER 19, 1927, 7 COMP. GEN. 221

A-19446: Sep 19, 1927

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PURCHASES - REPRINTS OF MAGAZINE ARTICLES THE PURCHASE OF REPRINTS OF MAGAZINE ARTICLES PREPARED BY EMPLOYEES OF THE GOVERNMENT IN THEIR OFFICIAL CAPACITY IS A PROCUREMENT OF PRINTING OF OFFICIAL MATTER IN CONTRAVENTION OF THE ACT OF MARCH 1. CLAIMS FOR THE PURCHASE PRICE OF REPRINTS OF MAGAZINE ARTICLES PREPARED BY GOVERNMENT EMPLOYEES WILL BE ALLOWED ONLY UPON A CLEAR SHOWING OF FACT THAT SUCH ARTICLES WERE PREPARED BY SUCH EMPLOYEES AS PRIVATE INDIVIDUALS AND NOT OFFICIALLY. 1927: THERE IS FOR CONSIDERATION THE CLAIM OF THE AMERICAN CHEMICAL SOCIETY FOR PAYMENT FOR REPRINTS FURNISHED THE DEPARTMENT OF AGRICULTURE. " WERE CONTRIBUTIONS BY MEMBERS OF THE SCIENTIFIC STAFF OF THE FIXED NITROGEN RESEARCH LABORATORY OF THIS BUREAU.

A-19446, SEPTEMBER 19, 1927, 7 COMP. GEN. 221

PURCHASES - REPRINTS OF MAGAZINE ARTICLES THE PURCHASE OF REPRINTS OF MAGAZINE ARTICLES PREPARED BY EMPLOYEES OF THE GOVERNMENT IN THEIR OFFICIAL CAPACITY IS A PROCUREMENT OF PRINTING OF OFFICIAL MATTER IN CONTRAVENTION OF THE ACT OF MARCH 1, 1919, 40 STAT. 1270. CLAIMS FOR THE PURCHASE PRICE OF REPRINTS OF MAGAZINE ARTICLES PREPARED BY GOVERNMENT EMPLOYEES WILL BE ALLOWED ONLY UPON A CLEAR SHOWING OF FACT THAT SUCH ARTICLES WERE PREPARED BY SUCH EMPLOYEES AS PRIVATE INDIVIDUALS AND NOT OFFICIALLY, SO THAT THE GOVERNMENT HAS NO PROPRIETARY INTEREST THEREIN AND NO CONTROL OVER THE RIGHT OF PUBLICATION.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 19, 1927:

THERE IS FOR CONSIDERATION THE CLAIM OF THE AMERICAN CHEMICAL SOCIETY FOR PAYMENT FOR REPRINTS FURNISHED THE DEPARTMENT OF AGRICULTURE, BUREAU OF SOILS, AS FOLLOWS:

REPRINTS FROM "INDUSTRIAL AND ENGINEERING CHEMISTRY" OF ARTICLES BY EMPLOYEES OF THE FIXED NITROGEN RESEARCH LABORATORY, AS FOLLOWS: 500 REPRINTS AND 550 COVERS, FEBRUARY, 1927, ISSUE ARTICLE

BY MESSRS. ERNST AND SHERMAN, DEPT. AGR. VOUCHER NO.

3163 --------------------------------------------------- $32.90 250 REPRINTS AND 300 COVERS, FEBRUARY, 1927, ISSUE, ARTICLE

BY MESSRS. CLARK AND KRASE, DEPT. AGR. VOUCHER NO.

3162 --------------------------------------------------- 10.95 250 REPRINTS AND 300 COVERS, FEBRUARY, 1927, ISSUE, ARTICLE

BY MESSRS. KRASE AND HETHERINGTON, DEPT. AGR. VOUCHER NO.

3161 ---------------------------------------------------- 11.76

AND $5.82 AS PAYMENT FOR 150 REPRINTS AND 200 COVERS TO ARTICLE IN THE JANUARY, 1927, ISSUE OF THE JOURNAL OF THE AMERICAN CHEMICAL SOCIETY FURNISHED THE DEPARTMENT OF AGRICULTURE, BUREAU OF SOILS, ON JANUARY 26, 1927, DEPARTMENT OF AGRICULTURE VOUCHER NO. 2842.

RELATIVE TO THE FIRST THREE ITEMS THE ACTING CHIEF, BUREAU OF SOILS, REPORTS:

THE ARTICLES ENTITLED "THE WORLD'S INORGANIC NITROGEN INDUSTRY," "PARTIAL PRESSURES OF CARBON DIOXIDE, AMMONIA, AND WATER OVER THE SYSTEM WATER AMMONIA CARBON DIOXIDE AMMONIUM NITRATE," AND ,REMOVAL OF CARBON DIOXIDE FROM GAS MIXTURES INTENDED FOR AMMONIA SYNTHESIS," WERE CONTRIBUTIONS BY MEMBERS OF THE SCIENTIFIC STAFF OF THE FIXED NITROGEN RESEARCH LABORATORY OF THIS BUREAU, AND WERE CONSIDERED OF SUCH VALUE THAT THEY WERE GIVEN PROMINENT NOTICE IN THE JOURNAL OF THE AMERICAN CHEMICAL SOCIETY. THESE ARTICLES WERE FURNISHED TO SAID JOURNAL AS CONTRIBUTIONS IN THIS FIELD OF SCIENCE. THEY WERE NOT FURNISHED FOR PUBLICATION AS DOCUMENTS, AND THE AUTHORS RECEIVED NO FINANCIAL BENEFIT FROM THEIR PUBLICATION. HOWEVER, AS THE TYPE WAS ALREADY SET UP, THE JOURNAL OFFERED TO RUN OFF A FEW HUNDRED ADDITIONAL COPIES AND FURNISH COVERS FOR SAME AT THE NOMINAL CHARGES SHOWN. THE TYPE ALONE COULD NOT BE SET UP FOR THESE SUMS, AND THE CHARGES REPRESENT ACTUAL COST OF PAPER, OPERATION OF PRESS, AND THE FURNISHING OF COVERS, ETC., AS NEAR AS IT CAN BE DETERMINED. THEREPRINTS CONTAIN MANY TABLES, ILLUSTRATIONS, ETC.--- CONCLUSIVE EVIDENCE THAT THEY COULD NOT BE PRINTED AS ORIGINAL DOCUMENTS FOR SEVERAL TIMES THE PRICES CHARGED THE GOVERNMENT. THE FEW COPIES OBTAINED WERE FOR OFFICIAL USE AND DISTRIBUTION.

RELATIVE TO THE LAST ITEM THE DIRECTOR OF PERSONNEL AND BUSINESS ADMINISTRATION, DEPARTMENT OF AGRICULTURE, MAKES THE FOLLOWING STATEMENT:

IT SHOULD BE STATED IN THE FIRST PLACE THAT THE ASSUMPTION IMPLIED IN THE SENTENCE IN YOUR LETTER," IT APPEARS THAT THE ARTICLE PRINTED IN THIS CASE ORIGINATED FROM THE BUREAU OF SOILS AND WAS FURNISHED TO THE MAGAZINE FOR PUBLICATION BY THAT BUREAU," DOES NOT CORRESPOND TO THE FACTS IN THIS CASE. IT IS TRUE THAT THE ARTICLE WAS WRITTEN BY ONE OF THE PERSONNEL OF THE BUREAU, AND THE REGULATIONS OF THE DEPARTMENT REQUIRE EMPLOYEES TO SUBMIT FOR ADMINISTRATIVE REVIEW MATERIAL PREPARED BY THEM FOR PUBLICATION WHERE THIS DEALS WITH SUBJECTS WITHIN THE RESEARCH OR OTHER WORK OF THE DEPARTMENT. THIS IS A PRECAUTIONARY MEASURE WHICH WILL BE READILY UNDERSTOOD, BUT PERMISSION TO PUBLISH BY NO MEANS STAMPS MATERIAL WITH OFFICIAL CHARACTER. THE DEPARTMENT ACQUIRES NO PROPERTY RIGHT IN THE ARTICLE NOR CONTROL OVER ITS PUBLICATION.

THESE FACTS, IT IS BELIEVED, FURNISH AN ANSWER TO YOUR INQUIRY WHY THE ARTICLE WAS NOT PRINTED AT THE GOVERNMENT PRINTING OFFICE AS AN OFFICIAL PUBLICATION. THE TRANSACTION WAS NOT THOUGHT OF AS A PROCUREMENT OF OFFICIAL PRINTING BUT MERELY AS THE PURCHASE OF COMMERCIALLY PREPARED PRINTED MATTER ON SALE TO THE PUBLIC GENERALLY. PRESUMABLY, HAD AN EQUIVALENT NUMBER OF ENTIRE ISSUES OF THE JOURNAL OF THE AMERICAN CHEMICAL SOCIETY BEEN PURCHASED THERE WOULD HAVE BEEN NO QUESTION OF CONFLICT WITH THE FEDERAL PRINTING LAWS. IT IS NOT SEEN THAT THE PROCUREMENT OF A SECTION OF THE ISSUE GIVES THE TRANSACTION A DIFFERENT CHARACTER.

THE ACT OF MARCH 1, 1919, 40 STAT. 1270, REQUIRES THAT ALL PRINTING FOR GOVERNMENT ESTABLISHMENTS BE DONE AT THE GOVERNMENT PRINTING OFFICE, EXCEPT "SUCH CLASSES OF WORK AS SHALL BE DEEMED BY THE JOINT COMMITTEE ON PRINTING TO BE URGENT OR NECESSARY TO HAVE DONE ELSEWHERE THAN IN THE DISTRICT OF COLUMBIA FOR THE EXCLUSIVE USE OF ANY FIELD SERVICE OUTSIDE OF SAID DISTRICT.'

REPRINTS OF ARTICLES APPEARING IN OUTSIDE MAGAZINES HAVE BEEN HELD TO BE "PRINTING" REQUIRED TO BE DONE AT THE GOVERNMENT PRINTING OFFICE WHERE SUCH ARTICLES CONSISTED OF ABSTRACTS OF BUREAU OF STANDARDS PUBLICATIONS DISTRIBUTED TO AND PUBLISHED BY SPECIAL TECHNICAL JOURNALS AND INCLUDING ONLY MATTER SHOWING THE RESULTS OF RESEARCH WORK CONDUCTED BY SUCH BUREAU. 3 COMP. GEN. 645. THE SAME CONCLUSION WAS REACHED WHERE AN ARTICLE WAS PREPARED BY THE MEDICAL SUPERVISOR, BUREAU OF INDIAN AFFAIRS, IN HIS OFFICIAL CAPACITY AND PUBLISHED IN AN OUTSIDE MAGAZINE, THE MATTER BEING OFFICIAL AND THEREFORE WITHIN THE CONTROL AND POWER OF THE DEPARTMENT TO HAVE PRINTED. DECISION OF SEPTEMBER 30, 1926, A-15606, REAFFIRMED OCTOBER 18, 1926. IT WAS HELD, HOWEVER, IN DECISION OF JUNE 1, 1927, A-18175, THAT WHERE A MAGAZINE ARTICLE WAS NOT PREPARED BY AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, THE PURCHASE OF REPRINTS THEREOF FOR THE OFFICIAL USE OF THE FIXED NITROGEN RESEARCH LABORATORY, BUREAU OF SOILS, WAS AUTHORIZED, THE DISTINCTION BEING THAT AS THE ARTICLE WAS NOT PREPARED BY A GOVERNMENT EMPLOYEE, THE GOVERNMENT HAD NO PROPRIETARY INTEREST THEREIN, AND COULD PROCURE NEEDED COPIES ONLY FROM THE PUBLISHER.

THE PRESENT CLAIM INVOLVES STILL ANOTHER SITUATION. HERE THE ARTICLES WERE PREPARED BY EMPLOYEES OF THE GOVERNMENT AND APPARENTLY THE SUBJECT MATTER PERTAINS TO THE SAME CLASS OF WORK AND INVOLVES THE SAME RESEARCH AS THEIR GOVERNMENT DUTIES. IT IS ADMINISTRATIVELY REPORTED AS TO ONE ARTICLE, HOWEVER, AND PRESUMABLY THE OTHERS ARE OF THE SAME CATEGORY, THAT THE PERMISSION OF THE DEPARTMENT TO AN EMPLOYEE TO PUBLISH AN ARTICLE DEALING WITH SUBJECTS "WITHIN THE RESEARCH OR OTHER WORK OF THE DEPARTMENT" DOES NOT STAMP THE MATERIAL WITH OFFICIAL CHARACTER AND THAT THE DEPARTMENT "ACQUIRES NO PROPERTY RIGHT IN THE ARTICLE NOR CONTROL OVER ITS PUBLICATION.'

GOVERNMENT EMPLOYEES ARE NOT GENERALLY PROHIBITED FROM WRITING AND PUBLISHING ARTICLES AS PRIVATE INDIVIDUALS, AND THERE IS A RECOGNIZED PRACTICE OF GOVERNMENT SCIENTISTS AND EXPERTS WRITING FOR PUBLICATION ON SUBJECTS PERTAINING TO THE PARTICULAR WORK ON WHICH THEY ARE EMPLOYED. THE WRITING MAY BE, IN FORM, ANYTHING FROM SHORT NEWSPAPER OR MAGAZINE ARTICLES TO COMPLETE TEXTBOOKS OR WORKS OF REFERENCE, AND WHILE THE WRITINGS MAY BE GIVEN MORE CREDENCE BY REASON OF THE OFFICIAL POSITIONS OF THEIR AUTHORS THEY ARE NOT OFFICIAL PUBLICATIONS. IF, AS A MATTER OF FACT, SUCH WRITINGS ARE NOT OFFICIAL--- THAT, IS, IF THEY HAVE NOT BEEN PREPARED AT THE DIRECTION OF THE OFFICIAL SUPERIORS OF THE AUTHOR OR AS PART OF HIS OFFICIAL DUTIES AND THE GOVERNMENT HAS NO CONTROL OVER OR PROPRIETARY INTEREST THEREIN SO AS TO MAKE THE ORIGINAL MATTER LEGALLY AVAILABLE TO THE GOVERNMENT FOR THE PURPOSE OF PRINTING, AND AN APPROPRIATION IS AVAILABLE FOR THE PURCHASE OF COPIES OF THE PRINTED MATTER, IN ITS PARTICULAR FORM, FROM THE REGULAR PUBLISHER--- THERE IS NO LEGAL OBJECTION TO THE PURCHASE OF SUCH MATTER FOR THE OFFICIAL USE OF THE DEPARTMENT CONCERNED. IF, ON THE CONTRARY, THE MATTER IS IN FACT OFFICIAL, HAVING BEEN PREPARED AS PART OF THE OFFICIAL DUTIES OF A GOVERNMENT EMPLOYEE, ITS PRINTING BY A PRIVATE PUBLISHER DOES NOT TAKE AWAY ITS OFFICIAL CHARACTER NOR MAKE IT LESS AVAILABLE FOR PRINTING BY THE GOVERNMENT PRINTING OFFICE FOR THE NEEDS OF THE GOVERNMENT, AS REQUIRED BY THE ACT OF MARCH 1, 1919, SUPRA. SEE SECTION 7 OF THE COPYRIGHT ACT OF MARCH 4, 1909, 35 STAT. 1077. PROCURING COPIES OF OFFICIAL MATTER IS ESSENTIALLY A PRINTING PROPOSITION AND THE PURCHASE OF REPRINTS OF SUCH MATTER FROM A PRIVATE PUBLISHER IS IN VIOLATION OF THE STATUTE, IRRESPECTIVE OF THE FACT THAT THEY MAY BE PROCURED AT LESS COST DUE TO THE CIRCUMSTANCE THAT SUCH PUBLISHER HAS FOR HIS OWN PURPOSES PREPARED PLATES FROM WHICH TO DO THE PRINTING.

AS TO THE PRESENT CLAIM, IT IS NOT CLEAR WHETHER THE ARTICLES WERE PREPARED BY EMPLOYEES OF THE BUREAU OF SOILS IN THEIR OFFICIAL CAPACITY OR AS PRIVATE INDIVIDUALS. WHILE IT MAY BE INFERRED FROM THE ADMINISTRATIVE REPORTS QUOTED THAT THE AUTHORS ACTED IN A PRIVATE CAPACITY AND PERSONALLY CONTROL, AS AGAINST THE GOVERNMENT, THE RIGHTS OF PUBLICATION, THE LANGUAGE USED IN SUCH REPORTS IS TOO GENERAL IN ITS NATURE TO DETERMINE THE EXACT STATUS OF THE PARTICULAR ARTICLES. IN THIS CONNECTION ATTENTION IS INVITED TO THE FACT THAT A PARENTHETIC STATEMENT APPEARS AT THE HEAD OF THE ARTICLE REPRINTED FROM THE JOURNAL OF THE AMERICAN CHEMICAL SOCIETY AS FOLLOWS:

(CONTRIBUTION FROM THE FIXED NITROGEN RESEARCH LABORATORY.)

IT WOULD APPEAR FROM THIS STATEMENT THAT THE MATTER PUBLISHED WAS OFFICIAL. IN THE ABSENCE OF A CLEAR SHOWING OF FACT THAT THE ARTICLES IN QUESTION, OR ANY OF THEM, WERE ACTUALLY PREPARED BY THEIR AUTHORS ACTING IN A PRIVATE CAPACITY AND NOT IN THEIR OFFICIAL CAPACITY, IT MUST BE HELD THAT THE PURCHASES WERE IN CONTRAVENTION OF THE ACT OF MARCH 1, 1919, AND, ACCORDINGLY, THAT AN ALLOWANCE ON THE CLAIM IS NOT AUTHORIZED.