Copyright status of works by the federal government of the United States

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A work of the United States government, as defined by the United States copyright law, is "a work prepared by an officer or employee" of the federal government "as part of that person's official duties." [1] In general, under section 105 of the Copyright Act, [2] such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

Contents

This act only applies to U.S. domestic copyright as that is the extent of U.S. federal law. The U.S. government asserts that it can still hold the copyright to those works in other countries. [3] [4]

Publication of an otherwise protected work by the U.S. government does not put that work in the public domain. For example, government publications may include works copyrighted by a contractor or grantee; copyrighted material assigned to the U.S. Government; or copyrighted information from other sources. [5]

History

The first Federal statute concerning copyright in government publications was the Printing Law enacted in 1895. [6] Section 52 of that Act provided that copies of "Government Publications" could not be copyrighted.

Prior to 1895, no court decision had occasion to consider any claim of copyright on behalf of the Government itself. Courts had, however, considered whether copyright could be asserted as to the text of laws, court decisions, governmental rules, etc., and concluded that such material were not subject to copyright as a matter of public policy. [6] But other material prepared for State Governments by their employees, notably the headnotes, syllabi, annotations, etc. prepared by court reporters, had been held copyrightable on behalf of the States. [6]

The Copyright Act of 1909 was the first copyright statute to address government publications. Section 7 of the Act (later codified as Section 8 of title 17 U.S.C.) provided that "No copyright shall subsist * * * in any publication of the United States Government, or any reprint, in whole or in part, thereof: * * *."

Prior to the Printing Act of 1895, no statute governed copyright of U.S. government works. Court decisions had established that an employee of the Federal Government had no right to claim copyright in a work prepared by him for the Government. [6] Other decisions had held that individuals could not have copyright in books consisting of the text of Federal or State court decisions, statutes, rules of judicial procedures, etc., i.e., governmental edicts and rulings. [6] Copyright was denied on the grounds of public policy: such material as the laws and governmental rules and decisions must be freely available to the public and made known as widely as possible; hence there must be no restriction on the reproduction and dissemination of such documents. [6]

While Copyright was denied in the text of court decisions, material added by a court reporter on his own - such as leadnotes, syllabi, annotations, indexes, etc.- was deemed copyrightable by him, although he was employed by the government to take down and compile the court decisions. [6] These cases may be said to have established the principle that material prepared by a government employee outside of the scope of the public policy rule was copyrightable; and that the employee who prepared such material on his own could secure copyright therein. [6]

There appears to be no court decision before 1895 dealing directly with the question of whether the United States Government might obtain or hold copyright in material not within the public policy rule. [6] But the question did arise with respect to State Governments. In the nineteenth century much of the public printing for the States was done under contract by private publishers. The publisher would not bear the expense of printing and publishing, however, unless he could be given exclusive rights. To enable the State to give exclusive rights to a publisher, a number of States enacted statutes providing that court reporters or other State officials who prepared copyrightable material in their official capacity should secure copyright in trust for or on behalf of the State. Such copyrights for the benefit of the State were sustained by the courts. [6]

Two cases before 1895 may also be noted with regard to the question of the rights of individual authors (or their successors) in material prepared for, or acquired by, the United States Government. In Heine v. Appleton, an artist was held to have no right to secure copyright in drawings prepared by him as a member of Commodore Perry's expedition, since the drawings belonged to the Government.' In Folsom v. Marsh, where a collection of letters and other private writings of George Washington had been published and copyrighted by his successors, the purchase of the manuscripts by the United States Government was held not to affect the copyright. The contention of the defendant that the Government's ownership of the manuscripts made them available for publication by anyone was denied. [6]

The Printing Law of 1895

The Printing Law of 1895, which was designed to centralize in the Government Printing Office the printing, binding, and distribution of Government documents, contained the first statutory prohibition of copyright in Government publications. [6] Section 52 of that Law provides for the sale by the Public Printer of "duplicate stereotype or electrotype plates from which any Government publication is printed," with the proviso "that no publication reprinted from such stereotype or electrotype plates and no other Government publication shall be copyrighted."

The provision in the Printing Act concerning copyright of government works was probably the result of the "Richardson Affair," which involved an effort in the late 1890s by Representative James D. Richardson (1843–1914) to privately copyright a government-published set of Presidential proclamations. [7] [6]

Section 7 of the Copyright Act of 1909 (later codified as Section 8 of title 17 U.S.C.) provided that "No copyright shall subsist ... in any publication of the United States Government, or any reprint, in whole or in part, thereof: ...." Section 7 also contained a "savings clause," which stated that "The publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor." [6] The committee report on the bill that became the Act of 1909 explains that the savings clause was inserted "... for the reason that the Government often desires to make use in its publications of copyrighted material, with the consent of the owner of the copyright, and it has been regarded heretofore as necessary to pass a special act every time this was done, providing that such use by the Government should not be taken to give to anyone the right to use the copyrighted material found in the Government publication." [6]

The Sections of the Copyright Act that now govern U.S. Government work were enacted in 1976 as part of the Copyright Act of 1976. The House Report to the enacted legislation stated that "the basic premise of section 105 of the bill is the same" as section 8 of the former title 17. [8]

Derivative works consisting predominantly of government works

Section 403 of the 1976 Act introduced a new provision concerning documents consisting preponderantly of one or more government works. In essence, such works would be denied copyright protection unless the required copyright notice included a statement specifically identifying those parts of the work that were not U.S. Government work, and therefore subject to copyright protection. According to the House Report, this provision was

aimed at a publishing practice that, while technically justified under the present law, has been the object of considerable criticism. In cases where a Government work is published or republished commercially, it has frequently been the practice to add some “new matter” in the form of an introduction, editing, illustrations, etc., and to include a general copyright notice in the name of the commercial publisher. This in no way suggests to the public that the bulk of the work is uncopyrightable and therefore free for use. [9]

"To make the notice meaningful rather than misleading," section 403 of the 1976 Act required that, when the copies consist “'preponderantly of one or more works of the United States Government,' the copyright notice (if any) identify those parts of the work in which copyright is claimed. A failure to meet this requirement would be treated as an omission of the notice," resulting, absent the application of some exception, in the loss of copyright protection. [9] [10]

Derivative works after the Berne Convention Implementation Act of 1988

The Berne Convention Implementation Act of 1988 amended the law to make the use of a copyright notice optional on copies of works published on and after March 1, 1989 and also revised Section 403. After the adoption of this act, a copyright notice was no longer necessary to secure copyright protection. Including the notice, however, does continue to confer certain benefits, notably in the challenging a defendant's claim of innocent infringement, where the question of proper notice may be a factor in assessing damages in infringement actions. Under the revised Section 403, these benefits are denied to a work consisting predominantly U.S. Government works "unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title."

Limitations

Works produced by contractors

(This section may no longer be valid - see GEORGIA v. PUBLIC.RESOURCE.ORG, INC. (906 F. 3d 1229) at https://www.law.cornell.edu/supremecourt/text/18-1150)

Unlike works of the U.S. government, works produced by contractors under government contracts are protected under U.S. copyright law[ disputed (for: only true at times) ]. The holdership of the copyright depends on the terms of the contract and the type of work undertaken. Contract terms and conditions vary between agencies; contracts to NASA and the military may differ significantly from civilian agency contracts. [11]

Civilian agencies and NASA are guided by the Federal Acquisition Regulations (FAR). There are a number of FAR provisions that can affect the ownership of the copyright. FAR Subpart 27.4—Rights in Data and Copyright provides copyright guidance for the civilian agencies and NASA. Additionally, some agencies may have their own FAR Supplements that they follow.

Under the FAR general data rights clause (FAR 52.227-14), the government has unlimited rights in all data first produced in performance of or delivered under a contract, unless the contractor asserts a claim to copyright or the contract provides otherwise. Unless provided otherwise by an Agency FAR Supplement, a contractor may assert claim to copyright in scientific and technical articles based on or containing data first produced in the performance of a contract and published in academic, technical or professional journals, symposia proceedings, or the like. The express written permission of the Contracting Officer is required before the contractor may assert or enforce the copyright in all other works first produced in the performance of a contract. However, if a contract includes Alternate IV of the clause, the Contracting Officer's approval is not required to assert claim to copyright. Whenever the contractor asserts claim to copyright in works other than computer software, the government, and others acting on its behalf, are granted a license to reproduce, prepare derivative works, distribute, perform and display the copyrighted work. For computer software produced under FAR contract, the scope of the government's license does include the right to distribute to the public, [12] but for "commercial off the shelf software", the government typically obtains no better license than would any other customer.

Transfers

The federal government can hold copyrights that are transferred to it. [2] Copyright law's definition of work of the United States government does not include work that the government owns but did not create. [1] For example, in 1837, the federal government purchased former U.S. President James Madison's manuscripts from his widow, Dolley Madison, for $30,000. [13] If this is construed as covering copyright as well as the physical papers, it would be an example of such a transfer. [14]

Exemptions

Works by certain independent agencies, corporations and federal subsidiaries may not be considered "government works" and may, therefore, be copyrightable. For instance, material produced by the United States Postal Service are typically subject to normal copyright. [15] Most USPS materials, artwork, and design and all postage stamps as of January 1, 1978, or after are subject to copyright laws. Works of the former United States Post Office Department are in the public domain (due to its former position as a cabinet department).

15 U.S.C.   § 290e authorizes U.S. Secretary of Commerce to secure copyright for works produced by the Department of Commerce under the Standard Reference Data Act. [16] [17]

State, territorial and local governments

The lack of copyright protection for works of the United States government does not apply to works of U.S. subnational governments. Thus, works created by the government of a state or local government may be subject to copyright. Some states have placed much of their work into the public domain by waiving some or all of their rights under copyright law. For example, the constitution and laws of Florida [18] have placed its government's works in the public domain. Unorganized territories (such as American Samoa and the former Trust Territory of the Pacific Islands) [19] are treated, for copyright purposes, as the U.S. government. Their works therefore fall under § 105 and lack copyright protection. [20]

Other restrictions

Certain works, particularly logos and emblems of government agencies, while not copyrightable, are still protected by other laws that are similar in effect to trademark laws. Such laws are intended to protect indicators of source or quality. For example, some uses of the Central Intelligence Agency logo, name, and initialism are regulated under the CIA Act of 1949 (50 U.S.C.   § 403m).

Edicts of government

The United States Copyright Office considers "edicts of government," such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents, not copyrightable for reasons of public policy. This applies to such works whether they are federal, state, or local as well as to those of foreign governments. [21]

See also

In other countries

Related Research Articles

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In the copyright law of the United States, a work made for hire is a work subject to copyright that is created by an employee as part of his or her job, or some limited types of works for which all parties agree in writing to the WFH designation. Work for hire is a statutorily defined term, so a work for hire is not created merely because parties to an agreement state that the work is a work for hire. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.

<i>Federal Register</i> Official journal of the US federal government

The Federal Register is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every weekday, except on federal holidays. The final rules promulgated by a federal agency and published in the Federal Register are ultimately reorganized by topic or subject matter and codified in the Code of Federal Regulations (CFR), which is updated annually.

A copyright is the legal protection extended to the owner of the rights in an original work. Original work refers to every production in the literary, scientific, and artistic domains. The Intellectual Property Office (IPOPHL) is the leading agency responsible for handling the registration and conflict resolution of intellectual property rights and to enforce the copyright laws. IPOPHL was created by virtue of Republic Act No. 8293 or the Intellectual Property Code of the Philippines which took effect on January 1, 1998, under the presidency of Fidel V. Ramos.

Copyright Act of 1909 copyright statute of the United States

The Copyright Act of 1909 was a landmark statute in United States statutory copyright law. It became Pub.L. 60–349 on March 4, 1909 by the 60th United States Congress, and it went into effect on July 1, 1909. The Act was repealed and superseded by the Copyright Act of 1976, but it remains effective for copyrighted works created before the Copyright Act of 1976 went into effect on January 1, 1978. It allowed for works to be copyrighted for a period of 28 years from the date of publication but extended the preexisting renewal term of 14 years to 28 years, for a maximum of 56 years.

The copyright symbol, or copyright sign, ©, is the symbol used in copyright notices for works other than sound recordings. The use of the symbol is described by the Universal Copyright Convention. The symbol is widely recognized but, under the Berne Convention, is no longer required in most nations to assert a new copyright.

Copyfraud False copyright claims to public domain content

A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain. Such claims are wrongful, at least under U.S. and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce. Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.

Berne Convention 1886 international copyright treaty adopted by over 170 countries

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.

Crown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown, i.e. government departments and (generally) state entities. Each single Commonwealth realm has its own distinct Crown copyright regulations. There are therefore no common regulations that apply to all or a number of those countries. There are some considerations being made in Canada, U.K., Australia and New Zealand regarding the "reuse of Crown-copyrighted material, through new licenses".

The copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Copyright Act 1968, which applies the national law throughout Australia. Designs may be covered by the Copyright Act as well as by the Design Act. Since 2007, performers have moral rights in recordings of their work.

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Copyright Act of 1976 United States law

The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, codified the doctrine of "fair use," and for most new copyrights adopted a unitary term based on the date of the author's death rather than the prior scheme of fixed initial and renewal terms. It became Public Law number 94-553 on October 19, 1976 and went into effect on January 1, 1978.

The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any work published before January 1, 1925, is generally considered public domain.

Public domain in the United States Status of public domain in the USA

Works are in the public domain if they are not covered by intellectual property rights, such as copyright, at all, or if the intellectual property rights to the works have expired.

Edict of government is a technical term associated with the United States Copyright Office's guidelines and practices that comprehensively includes laws, which advises that such submissions will not be accepted nor processed for copyright registration. It is based on the principle of public policy that citizens must have unrestrained access to the laws that govern them. Similar provisions occur in most, but not all, systems of copyright law; the main exceptions are in those copyright laws which have developed from English law, under which the copyright in laws rests with the Crown or the government.

The Fair Copyright in Research Works Act was submitted as a direct response to the National Institutes of Health (NIH) Public Access Policy; intending to reverse it.

The copyright status of works produced by the governments of states, territories, and municipalities in the United States varies. Copyright law is federal in the United States. Federal law expressly denies U.S. copyright protection to two types of government works: works of the U.S. federal government itself, and all edicts of any government regardless of level or whether or not foreign. Other than addressing these "edicts of government", U.S. federal law does not address copyrights of U.S. state and local government.

The Printing Act of 1895, was a law designed to centralize in the United States Government Printing Office the printing, binding, and distribution of U.S. Government documents. The Act revised public printing laws and established the roles of the Federal Depository Library Program (FDLP) and the Government Printing Office (GPO) in distributing government information. The act also assigned leadership of the program to the Superintendent of Public Documents, who would be under the control of the GPO,

Collective work (US) copyright term in U.S. law

A collective work in the Copyright law of the United States is a work that contains the works of several authors assembled and published into a collective whole. The owner of the work has the property rights in the collective work, but the authors of the individual works may retain rights in their contributions. Electronic reproduction of the whole work is allowed, but electronic reproduction of the individual works on their own, outside the context of the work as a whole, may constitute an infringement of copyright.

Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (2020), is a United States Supreme Court case regarding "whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated" (OCGA). On April 27, 2020, the Court ruled 5–4 that the OCGA cannot be copyrighted because the OCGA's annotations were "authored by an arm of the legislature in the course of its legislative duties"; thus the Court found that the annotations fall under the government edicts doctrine and are ineligible for copyright.

References

  1. 1 2 17 U.S.C.   § 101 "A 'work of the United States Government' is a work prepared by an officer or employee of the United States Government as part of that person’s official duties."
  2. 1 2 17 U.S.C.   § 105
  3. "Does the Government have copyright protection in U.S. Government works in other countries?".
  4. House Report No. 94-1476, p.59 ("The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.").
  5. CENDI Copyright Working Group. "Frequently Asked Questions About Copyright:Issues Affecting the US Government". Oak Ridge, TN: CENDI Secretariat. Archived from the original on March 4, 2009. Retrieved July 31, 2015.
  6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Copyright in Government Publications, in: Copyright Law Revision: Studies Prepared for the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess. 29-30 (Comm. Print 1961)(Study 33), pp. 23-42.
  7. Price, Brian (Fall 1976). "Copyright in government publications: Historical background, judicial interpretation, and legislative clarification". Military Law Review. 74: 19–65.
  8. House Report No. 94–1476. "The basic premise of section 105 of the bill is the same as that of section 8 of the present law [section 8 of former title 17]—that works produced for the U.S. Government by its officers and employees should not be subject to copyright. The provision applies the principle equally to unpublished and published works. The general prohibition against copyright in section 105 applies to “any work of the United States Government,” which is defined in section 101 as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” Under this definition a Government official or employee would not be prevented from securing copyright in a work written at that person’s own volition and outside his or her duties, even though the subject matter involves the Government work or professional field of the official or employee. Although the wording of the definition of “work of the United States Government” differs somewhat from that of the definition of “work made for hire,” the concepts are intended to be construed in the same way. A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee, to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a “double subsidy,” and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation, and the basically different policy considerations, applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds. The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions."
  9. 1 2 Historical and Revision Notes to 17 U.S.C. 403
  10. § 403 Pub. L. 94-553 (Oct. 19, 1976)Pub.L.   94 - 553 94 – 553
  11. CENDI Copyright Working Group (August 2004). "Frequently Asked Questions About Copyright". Commerce, Energy, NASA, Defense Information Managers Group. Oak Ridge, TN: CENDI Secretariat, Information International Associates, Inc. Archived from the original on April 21, 2016. Retrieved July 22, 2005.
  12. See definitions of data and unlimited rights and 27.404-1 at https://acquisition.gov/far/current/html/Subpart%2027_4.html Archived 2013-06-02 at the Wayback Machine
  13. An Act making appropriations for the civil and diplomatic expenses of Government for the year eighteen hundred and thirty-seven, 24th Cong., Sess. II, Ch. 33, 5. Stat. 163, 171, March 3, 1837
  14. The following year, Congress authorized publication of the papers, suggesting that the transaction did include copyright. An Act authorizing the printing of the Madison papers, 25th Cong., Sess. II, Ch. 264, 5. Stat. 309-310, July 9, 1838
  15. Compendium II: Copyright Office Practices, § 206.02(b) Archived February 11, 2011, at the Wayback Machine
  16. 15 U.S.C.   § 290e
  17. Compendium II: Copyright Office Practices, § 206.02(a) Archived February 11, 2011, at the Wayback Machine
  18. Florida Constitution Article I, §24(a)
  19. Compendium II: Copyright Office Practices, § 1102.08(b) Archived 2013-05-12 at the Wayback Machine
  20. Compendium II: Copyright Office Practices, § 206.02(e) Archived February 11, 2011, at the Wayback Machine
  21. Compendium II: Copyright Office Practices, § 206.01 Archived February 11, 2011, at the Wayback Machine