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Vol. 17 No. 4 — April 2009

This brouhaha over the USAF YouTube incident illustrates the common misconception that all federal government information is in the public domain. In reality, a vast amount of federal government information is copyrighted. The misconception is further perpetuated by federal agency practices that give little or no — and, when they do exist, often confusing — notice about copyright and the terms and conditions set for using the materials they distribute.

Some Copyright Basics

Copyright issues underlie practically every item we read, view, or listen to. Copyright protection vests automatically in both unpublished and published original works of authorship when fixed in a discernable format. No notice or action on the part of the author is required. It’s literally just there! With some exceptions (17 USC § 107- §122; http://uscode.house.gov), the law grants authors exclusive control for a limited time over the use of their works. This “bundle of five rights” includes the right to reproduce, distribute, adapt, perform, and display a work.

And the “limited time” of protection is generous. For published personal works of authorship, the term extends 70 years after the death of the author and passes to the author’s estate or heirs. Corporate works are protected for 95 years from the date of publication. Today, works published before 1923 are in the public domain. The rules governing copyright protection for works created between 1923 and 1979 vary, resulting in a large amount of material for which copyright is indeterminate (orphan works).

Copyright Exclusion for Federal Government Works

As to copyright protection for federal government works, let’s take a close look at the law. Title 17 USC §105 consists of a total of 37 words in one sentence with two clauses.

The first clause states: “Copyright protection under this title is not available for any work of the United States Government.” But what do the words “work of the United States Government” mean? That is the key to understanding the scope and limits of the provision. Unfortunately, 17 USC § 105 does not include or directly point to the definition found near the end of 17 USC § 101 which narrows government works to those “prepared BY an officer or employee of the United States Government as part of that person’s official duties.” In other words, only government works created by federal government employees on the job are not subject to copyright protection. The misconception that all federal government publications are not copyrighted is rooted in the 1909 Copyright Act which provided: “No copyright shall subsist in any publication of the U.S. Government or any reprint in whole or in part thereof.” The 1976 revision of the 1909 law substituted the word “work” for “publication” and added the definition to further clarify the shift of the federal government from printer to author.

Federal Government as Copyright Owner

The tendency to use the terms “government works,” “government information,” and “government publications” interchangeably also contributes to misperceptions. The Office of Management and Budget Circular OMB-A 130 established the policy for the Management of Federal Government Information Resources. The A-130 circular defines “government information” as “Information created, collected, processed, disseminated, or disposed of BY or FOR the Federal Government.” The “BY” or “FOR” is significant. While the first clause of 17 USC § 105 prohibits government copyright ownership in works by the government, the second allows government copyright ownership in the works of others. Apparently, most people put a mental period after the first clause, reinforcing the erroneous belief that the U.S. government cannot own copyrights. However, the second clause clearly states: “[but] the government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” It is this provision that enables the U.S. Air Force to claim copyright in the recruiting video it commissioned to be made for the government.

Copyrights in Federal Government Commissioned Works

Copyright legislative history shows that Congress decided that contractors and grantees were not employees for the purposes of copyright. Although works commissioned by the U.S. government may be freely available and have generous terms and conditions of use, the works are not “works of the U.S. Government” or automatically in the public domain.

Copyright in information produced for the federal government is determined by contracts and agreements in accordance with laws and policies expressed in such regulatory documentation as the Federal Acquisitions Regulation (FAR) and the Defense Federal Acquisitions Regulation Supplement (DFARS). Civilian agencies and NASA are guided by the FAR. Agencies, particularly the Department of Defense, may also have their own FAR Supplements as well. Under FAR Section 27.404-3 (a) (2) Copyrighted Works, contractors may only assert copyright in deliverables with the permission of the federal government [http://www.arnet.gov/far/current/html/Subpart%2027_4.html#wp1044946].

Permission is withheld when the deliverable is one of the following:

• A report that represents the official views of the agency or that the agency is required by statute to prepare

• Intended primarily for internal government use

• Is a type that the agency itself distributes to the public under an agency program

• Is a type that the government determines should be disseminated without restriction

In general, for all other deliverables, contractors retain copyright ownership of their work and grant “the Government a paid-up nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, distribute to the public, perform publicly, and display publicly by or on behalf of the Government, for all data (other than computer software) first produced in the performance of a contract” or agreement. The most common government license provides “unlimited rights,” which allows the federal government to share and exercise all rights of the copyright owner except for authorization of nongovernment purpose, third-party commercial uses.

Federal Government Copyright Ownership in Contracted Special Works

In some instances, the federal government may require a contractor to transfer the copyright in a “special work” to the government. Examples of these works are listed in FAR 27.405-1 [http://www.arnet.gov/far/current/html/Subpart%2027_4.html#wp1044946] and include (but are not limited to) audiovisual works; motion picture scripts; musical compositions; sound tracks; translations; adaptations; histories of agencies, departments, services, or units; surveys of government establishments; and instruction, guidance, or training materials for government officers and employees in the performance of their official duties.

As noted before, the second clause of 17 USC § 105 allows the federal government to retain and record transfers of copyrights in “special works.” A check of the U.S. Copyright Office Registration records [http://www.copyright.gov/records] shows that many agencies have done so, thereby signaling their intent to assert and enforce their copyright. U.S. Copyright Office.

Agencies may also add a copyright notice to a work, something along these lines:

© (Year) United States Government as represented by the Secretary of (Department), e.g., © 2008 United States Government as represented by the Secretary of Defense or

© (Year) (Agency Name); e.g., © 2008 U.S. Air Force

How Can You Tell What Federal Government Information Is Copyrighted?

So how much federal government information is created for the government? A 1999 Government Printing Office “Report on the Assessment of Electronic Government Information Products” found 15% of the products surveyed were copyrighted for all or part of the product. I believe the true percentage is probably two or three times that figure now, considering the federal government’s ever-growing reliance on contractors to do the work of government.

Unfortunately, federal agencies generally ignore copyright in managing their information assets and provide little or confusing guidance to the public about permitted uses of government information products. Typically, they advise users that information is not copyrighted unless otherwise stated and that, absent a notice, the information may be distributed or copied. Under current U.S. Copyright Law, a work is not in the public domain simply because it does not carry a copyright notice. A 1989 amendment to the copyright law automatically grants copyright protection to original works of authorship once fixed in a discernable format. No formality, registration, or effort on the part of an author is required for a work to be protected. Use of a copyright notice is voluntary. Even without a notice, users must assume a work is copyrighted, investigate its status, and seek permission if their intended use extends beyond the allowed exemptions in law.

Prior to joining the Berne Convention in 1989, it was reasonable and practical for the government not to give notice or mark government works. Post-Berne, this practice leads to confusion and uncertainty. When U.S. government work is separated from its originating source, guesswork faces us all.

Eliminating the Guesswork: Mark It!

In today’s “cut-and-paste” online environment, knowing what isn’t copyrighted is just as important as knowing what is. It would help both the federal government and citizens if the government would unambiguously mark and tag government works with a unique and readily recognizable symbol, legend, and metadata reflecting Title 17 USC § 105.

This marking trio is modeled after Creative Commons work, a system that provides free tools to let authors easily change copyright terms from “All Rights Reserved” to “Some Rights Reserved.” It employs three components that work together:

(1) A simple, plain-language summary of a copyright license and icons that represent the license terms [http://creativecommons.org/about/licenses]

(2) Legal code that will stand up in court

(3) Digital code comprising a machine-readable translation of the license for use by search engines and in other applications [http://creativecommons.org/technology]

Social networks such as Wikipedia have also taken on the task of identifying government works. The policies, rules, and tags Wikipedia contributors follow appear under “P” at http://en.wikipedia.org/wiki/Category:Image_copyright_tags. But try as they might, they don’t always get it right. Only federal government authors are in a position to know for sure the status of works of the U.S. government.

Probably Not the Last Word

Yes, U.S. government agencies can and do hold copyrights; sometimes the agencies even enforce them. In the March 2008 public brouhaha on the Air Force YouTube incident, the Air Force owned the copyright transferred to it by the contractor who created the recruiting ad. This transfer was stipulated under the Defense Federal Acquisitions Regulation Supplement “Special Works” contract clause. Unfortunately, the Air Force did not mark the material with its copyright notice and did not internally coordinate appropriate release channels.

Which leads us to ask again just what constitutes a ”work of the U.S. government”? This question and related issues such as the copyright status of government works published by third parties are subject matter for another follow-on article.

By the way, because I, as a federal employee, produced on agency time this article you are reading, this article itself constitutes a public domain work. So here is the statement that defines its status — and my editor has promised that the article will appear in perpetuity as a freely accessible document on the Information Today, Inc. website:

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USGovWork (17USC §105). Not subject to copyright.
This article is a United States Government work. The author is a U.S. Government employee. Copyright protection is not available for any work prepared by an officer or employee of the United States Government as part of that person’s official duties. The views presented in this article are those of the author and do not reflect the official position of the Department of Defense or U.S. Government.

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