The Age of Intellectual Property in a Grant Application and the Need to Protect it is Here.

By: Richard L. Austin

In recent years, the feverish pitch in the search for funds has created a dangerous behavior called “grant getting.” Finding monies through grants has led many a fund seeker to shortcut the proposal process by “cutting and pasting” words and phrases on a grant application without regard to where the information came from. The focus has been on getting the grant, and nothing else. This “grant getting” behavior will have to change, however, or the consequences could be severe.

The age of intellectual property in a grant application – and the need to protect it - is here.

The new age for grant writing will dawn on December 6, 2001 with a new federal policy on “misconduct” in research – which includes plagiarism in grant applications. It will shine a new light on those who write and ask for money - and it will change the fundamentals of fund raising forever. It helps protect the intellectual property of creative grant writing and it punishes those who ask for money while using someone else’s words and phrases without permission.

The new policy has been issued by the Office of Science and Technology Policy and will impact everyone that writes a grant. It is rooted in The National Science Foundation Act of 1950 and, while quite simple in its intent, is far reaching in its impact on fund raising. The policy formalizes misconduct in federally funded research projects “as fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.”

The risks now facing those that write grants for federal funding - their institutions, their organizations, and their disciplines, after December 6 - are extreme. The changes the new policy brings to the fund raising process outside of the federal funding arena are equally overwhelming.

The new policy is more than the policing of grant proposals and projects - it is a long needed safeguard for grant writers. It is a realistic and manageable way to protect the intellectual property in grant applications, and it will help reduce duplicate funding by identifying already used proposals and ideas.

It is very important to everyone that the integrity of scientific research and the fund raising process be protected. It is just as important to issue scarce resources wisely and avoid duplication whenever possible. The new misconduct policy will results in more recipients receiving more available funds from more sources. In this time of dwindling revenues and scarce resources for grants, everyone will win.

Strict Definitions
One of the main reasons for the new policy is the basic survival of federally funded projects: “advances in science, engineering, and all fields of research depend on the reliability of the research record, as do the benefits associated with them in areas such as health and national security. Sustained public trust in the research enterprise also requires confidence in the research record and in the processes involved in its ongoing development.” Without these inherent safeguards, federal research as we know it could be lost forever. Under the new policy:

1. Research will include “all basic, applied, and demonstration research in all fields of science, engineering, and mathematics. This includes, but is not limited to, research in economics, education, linguistics, medicine, psychology, social sciences, statistics, and research involving human subjects or animals.”
   
   
2. Fabrication will be “making up data or results and recording or reporting them,” while falsification is “manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.”
   
   
3. The research record will mean “the record of data or results that embody the facts resulting from scientific inquiry, and includes, but is not limited to, research proposals, laboratory records, both physical and electronic, progress reports, abstracts, theses, oral presentations, internal reports, and journal articles.”
   
   
4. Plagiarism becomes “the appropriation of another person's ideas, processes, results, or words without giving appropriate credit” but allows for honest errors or differences of opinion.
   
   
5. Research institution includes “all organizations using federal funds for research, including, for example, colleges and universities, intramural federal research laboratories, federally funded research and development centers, national user facilities, industrial laboratories, or other research institutes.” Independent researchers and small research institutions are covered by the policy as well.

What Is At Risk
First and foremost at risk to a grant writer is the loss of an awarded grant from the respective federal agency (or possibly the return of the funds to the agency, even after they have been expended). Along with the federal dollars lost in the grant will be any matching private funds achieved through the same application process. The ability to receive future funding from the respective federal agency – or any other co-sponsoring agency anywhere - will be doubt.

The financial impact, however, multiplies even further if the grant writer is at an educational or research institution. Gone will also be funds for any research or teaching assistants; the loss of funds for any new equipment covered by the grant; the loss of the indirect benefits to the institution; and, the loss of the grant writer’s reputation or maybe the institutional appointment as well. The possibility of promotion or tenure may also be lost forever.

Preceding all of these massive tragedies, however, comes the “investigative phase” of the process where the institution or organization must investigate the grant writer and a claim of misconduct. (The key word here is “claim”, and an investigation can be initiated simply by a colleague questioning the misappropriation of words in a grant proposal or application, termed “ plagiarism”). Even if the result of the seemingly endless investigative process (the extensive peer reviews, the outside political scrutiny, and the governing board oversight) determines the action to be only an “honest error or difference of opinion”, the grant writer in question will be on everyone’s radar screen for a long time to come.

The resources expended and the costs incurred to reach even a benign conclusion after an exhaustive, time-consuming investigation are not much less that those to conclude and report an action of “misconduct.” Subsequently, if laws are found to have been broken by the grant writer (such as an intellectual property violation via a copyright infringement), the costs of remedies for these actions alone will be even more staggering – to everyone in the equation.

If you are required to write grants to support your fund raising efforts, ask yourself the following questions.

1. Does U.S. Copyright Law protect grant proposals?
2. Are grant proposals intellectual property?
3. Are grants written for financial gain?
4. Is re-using just a paragraph of someone else’s grant proposal without permission misconduct?
5. Is the individual grant writer subject to financial penalties if the copyright law is violated?
6. Can your institution or organization also be subjected to financial penalties for the plagiarism of a grant proposal?
7. Could a grant proposal be rejected because of citations from other proposals?

It is best for a grant writer to err on the side of caution when completing an application – especially those projects based on excessive “cutting and pasting.” Here’s why:

Question 1: Does U.S. Copyright Law protect grant proposals?

Answer – Yes: Copyright is a protection that covers published and unpublished literary, scientific and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form. A previously written grant proposal, awarded or not, is in fixed form. Just because your grant is for research at an educational institution or may serve an educational purpose in a non-profit organization does not exempt it from copyright infringement.

Question 2: Are grant proposals intellectual property?

Answer – Yes: Someone, somewhere created the original proposal and fixed it in tangible or material form. If a written proposal or funded grant (or any portion of the material) can be seen, heard, touched, read or in someway put to paper – it is someone’s intellectual property.

Question 3: Are grants written for financial gain?

Answer – Yes: Of course they are. And here lies the problem for grant writers as well as the organizations receiving the funds. Grants are written and submitted for money that is often shared among a number of recipients. If the grant is a violation of a law then everyone that benefits from the project can be at risk for financial penalties – including the granting agency or foundation!

Question 4: Is re-using just a paragraph of someone else’s grant proposal without permission misconduct?

Answer – Yes: Re-use of any portion of the grant proposal (including a simple paragraph) – especially for financial gain – requires permission from the original grant writer (the property owner). Make sure you have the permission in writing!

Question 5: Is the individual grant writer subject to financial penalties if the copyright law is violated?

Answer – Yes: Responding to an inquiry about the work from the original proposal owner (or their attorney) is very costly for a grant writer as well as their institution, often into the tens of thousands of dollars. If an investigation determines a grant writer could possibly be associated with misconduct and a broken law, anything can happen – and probably will.

Question 6: Can your institution or organization also be subjected to financial penalties for the plagiarism of a grant proposal?

Answer – Yes: Any member of the equation from the grant writer to the recipients of any portion of the funds can be part of the liability loop. Even a journal publisher could be held liable for publishing protected research results developed from funds gained through misconduct!

Question 7: Could a grant proposal be rejected because of citations from other proposals?

Answer – Yes, probably! (The waters have yet to be fully tested on this one, however.): Funding a proposal written with intellectual property not belonging to the grant writer will be very rare, and impractical for many granting agencies and organizations – especially non-federal sources.

Reducing the Risks
For the individual grant writer:

• DO NOT plagiarize in a grant proposal or on an application for funding. It’s that simple. Create the material yourself. If you can’t, at least cite every source and get written permission to re-use the material.
  
  
• DO NOT re-use previously funded proposals without written permission from the original property owner, the organization that funded the project and the organization that received the funds. Successful applications will be especially scrutinized for infringement actions because these are the most valuable to re-use.
  
  
• NEVER fabricate or falsify research results or reports to a funding agency. The odds of a jealous colleague somewhere questioning your report is quite good.
  
  
• NEVER assume that your work is for educational purposes and therefore exempt from the Copyright Law. It isn’t.
  
  
• NEVER assume, because you cut and paste information from the Internet, that it is automatically public domain. It’s NOT!

For research centers, organizations, societies and universities:

• Develop a grant writing policy and guidelines for your faculty to fulfill when writing a grant proposal - and enforce it!
  
  
• Maintain an internal database of all proposals, abstracts and reports and check them for re-use (plagiarism), correct citations and written permissions – before they leave the department or lab.
  
  
• At the research center or university level, proposals, abstracts and reports should be checked once again for re-used materials before they are reviewed by outside peers or a governing board.
  
  
• At the organization/society level, have a database available for members to “crosscheck” applications, proposals, abstracts and reports against different organizations and institutions.
  
  
• Journal or magazine editors should not allow project results to be published – even abstracts – unless the body of work is checked for plagiarism. Peer reviewers could assist substantially in this phase of the process as well.
  
  
• At a superintendents or university funded projects office, check ALL applications, proposals, abstracts, reports and peer reviews against all faculties at the school or institution for protection of their intellectual property. Share this capability among your peer offices at other organizations as well.

For non-federal granting agencies:
(The assumption is made here that federal granting agencies are exempt from lawsuits for intellectual property violations. Non-federal funding sources are not exempt, however, and will need to protect themselves from infringement challenges and claims of misconduct.)

• Develop a “plagiarism policy” (including penalties for violations) for your funding program and make copies readily available to everyone that asks you for money.

Protect yourself first.

• Screen ALL incoming proposals against previously submitted and/or awarded materials. Awarding funds for the same proposal twice is wasting precious resources.
  
  
• Consider using a third party screening service or develop an in-house database for screening proposals, abstracts and reports electronically with document analysis software. (Suggested links to review services and software: FindSame.org, www.wordchecksystems.com, www.integriguard.com, www.canexus.com/eve/what-eve.html)
  
  
• Reject any research proposals containing duplicate funding material or material without proper citations or written permissions.

Our friends at Napster just discovered what happens when copyright infringement is facilitated without regard to the intellectual property rights of the original owner. Kinko’s learned a similar lesson just a decade earlier. Everyone now in the fund raising equation should learn from this legacy of errors. The grant writing landscape has changed. There is a new light shining on everyone. The new age for fund raising and grant writing begins December 6, 2001.

Suggested Readings and Resources:

1. Buzzelli, Donald E., “The Definition of Misconduct in Science: A View from NSF,” Science, 29 January 1993, Volume 259, pp. 584-585, 647-648.
   
   
2. Federal Register: December 6, 2000, Volume 65, Number 235, pgs. 76260-76264.
   
   
3. On Being A Scientist: Responsible Conduct In Research: Misconduct In Science, www.nap.edu/readingroom/books/obas/contents/misconduct.html.
   
   
4. Web Site: http://www.ostp.gov/html/001207_3.html
   
   
5. Web Site: http://counsel.cua.edu/FEDLAW/Nsf.htm

Richard L. Austin is an Associate Professor at the University of Nebraska-Lincoln. He teaches Grant Writing and Fund Raising at the graduate level and is a consultant to book publishers, private foundations and intellectual property attorneys on the measurement of intellectual property infringement. He can be reached at raustin1@unl.edu if you have questions or comments on the materials appearing in this article.

For answers to your fundraising questions, please call CDS Director of Marketing Libby Skelley at at 800-761-3833, or contact her via e-mail at lcs@cdsfunds.com. Custom Development Solutions, Inc. (CDS) has become one of North America's best and most sought after fundraising consulting firms specializing in the strategic planning and tactical execution of capital campaigns for non-profits throughout the United States and Canada. More information on CDS can be found on the web at www.cdsfunds.com.