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

(Redirected from Copyright status of work by the U. S. government)

A work of the United States government is defined by the United States copyright law, as "a work prepared by an officer or employee of the United States Government as part of that person's official duties". Under section 105 of the Copyright Act of 1976, such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

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.

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. Further, the copyright status of works by subnational governments of the United States is governed by its own set of laws.

History

The first Federal statute concerning copyright in government publications was the Printing Law enacted in 1895. 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. 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.

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".

Copyright in government works prior to 1895

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. 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. 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.

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. 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.

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. 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.

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.

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. 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.

The Copyright Act of 1909

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." 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".

The Copyright Act of 1976

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.

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.

"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.

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

Unlike works of the U.S. government, works produced by contractors under government contracts are protected under U.S. copyright law. 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.

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

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. 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. National Defense Authorization Act (NDAA), FY2020, granted civilian members of the faculty at twelve federal government institutions the authority to retain and own copyright of works produced in the course of employment for publication by a scholarly press or journal.

State, territorial, and local governments

For details regarding every state, locality and organized territory, see Copyright status of work by U.S. subnational 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 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 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) are treated, for copyright purposes, as the U.S. government. Their works therefore fall under § 105 and lack copyright protection.

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

Main article: Edict 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.

References

^ 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."
^ 17 U.S.C. § 105.
"Frequently Asked Questions about Copyright" (PDF). CENDI. section 3.1.7. Retrieved January 1, 2022.
"Copyright Law Revision (House Report No. 94-1476)". Wikisource. United States House of Representatives. 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.
CENDI Copyright Working Group (October 8, 2008). "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.
^ 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.
Price, Brian (Fall 1976). "Copyright in government publications: Historical background, judicial interpretation, and legislative clarification" (PDF). Military Law Review. 74: 19–65. Archived (PDF) from the original on December 7, 2023.
"17 U.S. Code § 105 - Subject matter of copyright: United States Government works - House Report No. 94–1476". Legal Information Institute. Archived from the original on February 4, 2024. The basic premise of section 105 of the bill is the same as that of section 8 of the present law —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.
^ "17 U.S. Code § 403 - Notice of copyright: Publications incorporating United States Government works - Historical and Revision Notes". Legal Information Institute. Archived from the original on November 17, 2023.
§ 403 Pub. L. 94-553 (Oct. 19, 1976) Pub. L. 94–553.
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.
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
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
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
Compendium II: Copyright Office Practices, § 206.02(b) Archived February 11, 2011, at the Wayback Machine
15 U.S.C. § 290e
Compendium II: Copyright Office Practices, § 206.02(a) Archived February 11, 2011, at the Wayback Machine
Florida Constitution Article I, §24(a)
Compendium II: Copyright Office Practices, § 1102.08(b) Archived 2013-05-12 at the Wayback Machine
Compendium II: Copyright Office Practices, § 206.02(e) Archived February 11, 2011, at the Wayback Machine
Compendium II: Copyright Office Practices, § 206.01. Archived February 11, 2011, at the Wayback Machine.

External links

Statutes

Pre-1976	Copyright Act of 1790 Copyright Act of 1831 Copyright Act of 1870 International Copyright Act of 1891 Printing Act of 1895 Copyright Act of 1909
1970s	Copyright Act of 1976
1980s	Berne Convention Implementation Act of 1988
1990s	Visual Artists Rights Act (1990) Copyright Remedy Clarification Act (1990) Copyright Renewal Act of 1992 Audio Home Recording Act (1992) Uruguay Round Agreements Act (1994) No Electronic Theft Act (1994) Copyright Term Extension Act (1998) Fairness in Music Licensing Act of 1998 Digital Millennium Copyright Act (1998) Online Copyright Infringement Liability Limitation Act WIPO Copyright and Performances and Phonograms Treaties Implementation Act
2000s	Family Entertainment and Copyright Act (2005)
2010s	Unlocking Consumer Choice and Wireless Competition Act (2014) Music Modernization Act (2018)
2020s	CASE Act (2020)

Precedents
and rulings

Supreme Court	Wheaton v. Peters (1834) Baker v. Selden (1879) Trade-Mark Cases (1879) Burrow-Giles Lithographic Co. v. Sarony (1884) Banks v. Manchester (1888) Callaghan v. Myers (1888) Bobbs-Merrill Co. v. Straus (1908) White-Smith Music Publishing Co. v. Apollo Co. (1908) Williams & Wilkins Co. v. United States (1975) Sony Corp. of America v. Universal City Studios, Inc. (1984) Feist v. Rural (1991) Campbell v. Acuff-Rose Music, Inc. (1994) Quality King v. L'anza (1998) Eldred v. Ashcroft (2003) MGM Studios, Inc. v. Grokster, Ltd. (2005) Costco Wholesale Corp. v. Omega, S. A. (2010) Golan v. Holder (2012) Kirtsaeng v. John Wiley & Sons, Inc. (2013) American Broadcasting Cos., Inc. v. Aereo, Inc. (2014) Star Athletica v. Varsity Brands (2017) Fourth Estate v. Wall-Street.com (2019) Georgia v. Public.Resource.Org, Inc. (2020) Google LLC v. Oracle America, Inc. (2021) Andy Warhol Foundation v. Goldsmith (2023)
Appeals courts	Berlin v. E.C. Publications, Inc. (2d Cir. 1964) Roth Greeting Cards v. United Card Co. (9th Cir. 1970) Eltra Corp. v. Ringer (4th Cir. 1978) Walt Disney Productions v. Air Pirates (9th Cir. 1978) Midway Manufacturing Co. v. Artic International, Inc. (7th Cir. 1983) Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir. 1983) Fisher v. Dees (9th Cir. 1986) Whelan v. Jaslow (3d Cir. 1986) Vault Corp. v. Quaid Software Ltd. (5th Cir. 1988) Rogers v. Koons (2nd Cir. 1992) Computer Associates International, Inc. v. Altai, Inc. (2d Cir. 1992) American Geophysical Union v. Texaco, Inc. (2nd Cir. 1995) Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc.(9th Cir. 1997) Itar-Tass Russian News Agency v. Russian Kurier, Inc. (2d Cir. 1998) Sony Computer Entertainment, Inc. v. Connectix Corp. (9th Cir. 2000) Nunez v. Caribbean Int'l News Corp. (1st Cir. 2000) A&M Records, Inc. v. Napster, Inc. (9th Cir. 2001) Veeck v. Southern Building Code Congress Int'l (5th Cir. 2002) Kelly v. Arriba Soft Corp. (9th Cir. 2002 / 2003) In re Aimster Copyright Litigation (7th Cir. 2003) NXIVM Corp. v. Ross Institute (2d Cir. 2004) BMG Music v. Gonzalez (7th Cir. 2005) Bill Graham Archives v. Dorling Kindersley, Ltd. (2nd Cir. 2006) Blanch v. Koons (2nd Cir. 2006) Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2006) Cartoon Network, LP v. CSC Holdings, Inc. (2nd Cir. 2008) Ahanchian v. Xenon Pictures, Inc. (9th Cir. 2010) Penguin Group (USA) Inc. v. American Buddha (2d Cir. 2011) Monge v. Maya Magazines, Inc. (9th Cir. 2012) Viacom International Inc. v. YouTube, Inc. (2d Cir. 2012) Seltzer v. Green Day, Inc (9th Cir. 2013) Authors Guild, Inc. v. Google, Inc. (2d Cir. 2015) Lenz v. Universal Music Corp. (9th Cir. 2015) Naruto v. Slater (9th Cir. 2018)
Lower courts	Folsom v. Marsh (C.C.D. Mass. 1841) Elektra Records Co. v. Gem Electronic Distributors, Inc. (E.D.N.Y. 1973) Broderbund Software Inc. v. Unison World, Inc. (N.D. Cal. 1986) Playboy Enterprises, Inc. v. Frena (M.D. Fla. 1993) Bridgeman Art Library v. Corel Corp. (S.D.N.Y. 1999) RealNetworks, Inc. v. Streambox, Inc. (W.D. Wash. 2000) Mannion v. Coors Brewing Co. (S.D.N.Y. 2005) Arista Records LLC v. Lime Group LLC (S.D.N.Y. 2010) Capitol Records, LLC v. ReDigi Inc. (S.D.N.Y. 2013) Equals Three, LLC v. Jukin Media, Inc. (C.D. Cal. 2015) Hachette v. Internet Archive (S.D.N.Y. 2023)

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