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

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.

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: * * *."

Copyright in government works prior to 1972

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 1972 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 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]

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."[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 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.[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."