Copyright in Government Publications and Grants

The always-useful beSpacific blog has a posting on a new FAQ on copyright produced by CENDI, the interagency working group of senior Scientific and Technical Information managers from 12 U.S. federal agencies.

The FAQ is focused on issues relating to copyright in a government setting, and it is excellent. It includes discussion of when government works are copyrighted, what happens when government works are included in other publications, and the copyright status of work produced by Federal contracts and grants. It also has a very useful copyright glossary, and links to many of the copyright notice and permission pages from different federal agencies. And it doesn't avoid taking opinions. Highly recommended.

Comments

[Dr. Klaus Graf]

I have offered Copyright Office the following choices. The office has chosen the answer marked with an X:

[ ] LoC will not litigate foreign use of pictures made by its employees

[X] LoC asks such foreign users seeking permission on a
case-by-case basis

[ ] LoC has no such policy and Copyright Office is not able to answer questions regarding a LoC copyright policy which does'nt exist.

[ ] None of all

[Dr. Klaus Graf]

Answer from Copyright Office (copyright.gov), 19 Oct 2004 (David Fernandez-Barrial):

"The U.S. Copyright Office is a division of the Library of Congress where the copyrights for works of creative authorship are registered. Hundreds of thousands of images are registered yearly with us. The collections of works registered with the Copyright Office are distinct from those in the Library’s collections. Nevertheless - though the functions of the Copyright Office are in many ways distinct from that of the Library as a national library - in our role of providing information about the copyright law, we can explain the general principles that govern the use of images and other works of creative authorship.

The extensive collections of the Library of Congress include images that are in the Public Domain as well as those which are currently under copyright protection. Neither the Copyright Office nor the Library grants permission to use those works when rights vest in the work – that is the exclusive prerogative of the copyright owner. We do not have the legal authority to litigate infringement of copyright because we do not own the rights.

The images that you seem to be referring to (based on your latest question) involve works in the collections of Library of Congress. As explained in the first email, in order to determine the status of a work – including those works made available through the Library of Congress - you have to proceed on a case-by- case basis. In regards to works of the U.S. Government in the PD in the U.S. (part of the Library collections or not): neither the Copyright Office nor the Library of Congress can ensure or otherwise guarantee that foreign users of images in the Public Domain in the U.S. will not be litigated against by Federal Agencies in the U.S. You would need to contact these agencies individually to determine if indeed they will not seek to enforce their rights abroad."

[Dr. Klaus Graf]

The answer of The Copyright Office on the question of government PD is definitively in my opinion NOT HELPFUL:

Quote:
Regarding your question, when a work is in the public domain in the United States, there are no restrictions as to its use, and anyone can utilize it as they wish - with no restrictions as to copying, preparing derivative works or distributing copies and without regard for the other exclusive rights of the former copyright owner as enumerated in Section 106 of the copyright law. However, it is possible for a work to have fallen in the public domain in the U.S. and still enjoy protection in other countries.

The ways in which a work would have fallen into the public domain in the U.S. include: that it was first published prior to 1923 click here for more information: http://www.copyright.gov/circs/circ15a.html ) ; because it was not renewed in a timely fashion under the old copyright law in effect from 1909-1977(click here for more information: http://www.copyright.gov/circs/circ15.html ); or because it was published without copyright notice prior to March 1, 1989 (click here for more information: http://www.copyright.gov/circs/circ03.html ).

It could very well be the case that a work fell out of copyright protection in the U.S. but still enjoyed protection abroad - it would be necessary to look at each work on a case-by-case basis to make that determination. If an image (artwork or photograph) had fallen into the public domain in the U.S., but was still protected in another nation, then the publication those public domain copies from the U.S. might be violation of law, but you would need to consult the copyright and customs laws of the nation in question to decide.

If the nation in question is Germany, you may wish to put the question to your Federal Ministry of Justice, Copyright Section, Address Jerusalemer Strasse 27, D-10117 Berlin ( Mailing address: Bundesministerium der Justiz 11015 Berlin, D-10104 Berlin, Telephone 20 25 70; 20 25 93 23, Telefax (49 30) 20 25 95 25).

Sincerely,
David Fernandez-Barrial

**********************************
David Fernandez-Barrial
Copyright Information Section
Copyright Office
Library of Congress
101 Independence Ave SE
Washington DC 20559
(202) 707-3000
www.copyright.gov

[Dr. Klaus Graf]

See now the little debate on the VolcanoCam (US Forest Service) at
http://www.boalt.org/biplog/archive/000610.html
(found at Open Access News)

[Mary]

Also check out the Congressional Research Report 1998 by Edward B. Rappaport, COPYRIGHT TERM EXTENSION: ESTIMATING THE ECONOMIC VALUES

[Mary]

Dennis S. Karjala, Professor of Law atArizona State University has been posting a list of items that are in literary limbo. He calls it "the subverted public domain." I'll bet that he's a good source for your note.

http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/publicdomain/PDlist.html

[Jeremy Sussman]

I am trying to locate hard data on the volume, nature, and value of copyrights that will expire and enter the public domain at the end of the Bono Act extension for a note I am planning on writing.
Any suggestions on where to begin to look for this information?

[Mary Minow]

Klaus - that is most helpful - I'm reprinting it below in case the link ever disappears. - Mary
---------------------------

http://mail.wikipedia.org/pipermail/wikide-l/2004-September/020078.html

From: FW9PA_Images at fws.gov
Subject: Re: New message from Contact Us form
Date: Wed, 15 Sep 2004 06:24:56 -0400
To: klaus.graf at geschichte.uni-freiburg.de
Cc: Contact2 at fws.gov

Dear Dr. Graf,

Thank you for your inquiry into the FWS Image Library. All of our images are public domain. We do send out declarations for use of our public domain images on our website. We will not litigate public domain images with foreign commercial or non-commericial users of our images. Our images are free of charge so a Creative Commons license is not needed for use of our images. We hope that you find our images useful in your conservation message.

If you use the image in your communication products please credit the U.S. Fish and Wildlife Service, and the photographer in an appropriate manner as the source of the image. However, if this image is used in a promotion or endorsement of some kind, there must be no implication that the Department of the Interior/U.S. Fish & Wildlife Service endorses or in any way supports the promotion or any special interest position.

I hope this helps answer your questions. Best of luck with your project.

FWS Image Library

Contact2
To:
images at fws.gov
09/10/2004 04:30 cc:
PM Subject: New message from Contact Us form

Regards,

Customer Service Center - Tier II
U.S. Fish and Wildlife Service
--------
Anbei eine sehr erfreuliche Nachricht einer fuer Naturbilder ausserordentlich wichtigen Bilderquelle. Es waere schoen, wenn alle US-Regierungsbehoerden so reagieren wuerden, aber wissen kann man es nun mal nicht. Ich warte noch auf Copyright Office (LoC) und National Archives sowie eine Militaerbehoerde (vielleicht kann auch jemand anderes mal bei anderen Stellen nachfragen?). Trotz der gewissen Entwarnung scheint mir wichtig, dass alle USGOV-PD-Bilder auch als solche gekennzeichnet werden und dass Nachnutzer klar und deutlich ueber die (hoffentlich theoretische) Moeglichkeit aufgeklaert werden, dass US-Behoerden, die anders als FWS keine Verzichterklaerung abgeben, Ansprueche geltend machen KOENNEN.

Klaus Graf

[Dr. Klaus Graf]

Good news from the FWS: it will not litigate foreign users

http://mail.wikipedia.org/pipermail/wikide-l/2004-September/020078.html

Thanks for all help!

[Peter]

Klaus asks if it would be possible to abstract the relevant section of the Senate Report. I don't know why the CENDI people cited the early Senate Report (and note that it is 1st Session, not 2nd). The text in the final report is identical, and is found in the "notes" section of the Cornell Legal Information Institute's version of the law (at ).

The relevant text for this discussion is as follows:

"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."

Once again, however, I am not aware of any agency that enforces a copyright abroad (though I am sure it has happened).

[Klaus Graf]

Thanks for the useful comments.

I do not think that Germany follows the rule of the shorter term. I only know that German International Private Law is too complicated for me to understand. Readers who are able to understand German are invited to enjoy the following German dissertation of Markus Junker at Kassel University Press (PDF may be viewed freely):
http://www.upress.uni-kassel.de/abstracts_fr/3-933146-78-X.html

Excuse the following question: What's about
"S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)" - would it be possible to abstract the content of this source understandable for a foreign reader?

The wikipedia problem in Germany is that all pictures have to be licensed in a way that commercial use _is_ allowed. I have not made this rule and I am not happy with it but it is a consensus of the German wikipedia community. Thus it seems not to be a problem to use US-Gov-PD pictures for other German non-profit projects but it is for the wikipedia. And I think Cornell or another high estimated private university in the US would allow freely use of PD pictures from its websites for non-commercial use on request. But such a decision would not help the wikipedia.

[Peter]

Klaus raises an interesting issue. There is law, and then there is actual practice.

The law is as the CENDI folks write: works of the US government are only in the public domain in the US. I don't know what the copyright on those works would be in Germany, however. What is the copyright term for corporate works in Germany? And does Germany follow the "rule of the shorter term?" If it does, then I would think a PD work in the US would by default be PD in Germany.

The issue of jurisdiction is an interesting one, too. Is a server that is in the US but doing business in Germany governed by US law or German law? I would believe that it would be Germany law - but jurisdictional issues on the web are a hot issue.

In reality, though, the law doesn't matter that much. My impression is that most Federal agencies don't realize that they may own copyrights overseas, and hence aren't equipped for dealing with permissions. A quick search in FirstGov.gov for "copyright permissions" shows that there are few Federal offices that have information on permissions on their web pages. Those that do mostly just say the stuff they create is in the public domain.

The Office of Management and Budget (OMB) in Circular A-130 (especially the 4th Appendix) seemed to suggest that government information in a global context should be freely available - unless other governments restrict and commercialize their own information.

Probably the best thing that anyone in Germany can do is to check a US government web site for information on use of material. If it doesn't say anything about permissions, I doubt if the agency will suddely turn around and sue someone in Germany for using an image - unless it is for commercial purposes, or unless it uses logos or trademarks (such as the NASA "meatball").

[Dr. Klaus Graf]

Thank you very much for the hint at this excellent resource answering some of my questions regarding US government works.

"3.1.7 Does the Government have copyright protection in U.S. Government works in other countries?

Yes, the copyright exclusion for works of the U.S. Government is not intended to have any impact on protection of these works abroad (S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). Therefore, the U.S. Government may obtain protection in other countries depending on the treatment of government works by the national copyright law of the particular country. Copyright is sometimes asserted by U.S. Government agencies outside the United States."

German law excludes only small portions of government works from copyright e.g. legislation and court decisions ("Amtliche Werke" § 5 UrhG de).

It is a common view (e.g. in the German Wikipedia) to see the US public domain of government works as a worldwide public domain. According to the German Wikipedia strict policy all pictures presented on the Wikipedia German website (the server is in the USA but I think German law governs the German branch) have to be public domain or GNU licensed (allowing commercial re-use and derivative works). I suppose federal agencies would allow use in the Wikipedia but would NOT license the picture for worldwide commercial re-use (or derivative works which could change the authenticity of the work). Have you some thoughts on this?