Copyright and Marking US Government WorksBackground & Definitions

Bonnie Klein

Chair, CENDI Copyright Working GroupTechnical Reports Team LeadInformation Collection Division

Defense Technical Information Center

Approved for Public ReleaseU.S. Government Work (17 USC §105) Not copyrighted in the U.S.

A Workshop of the CENDI Copyright Working Group November 2, 2006

Government Printing OfficeWashington DC

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Federal Research Public Access Act of 2006 Senate Bill 2695

• Cronyn-Lieberman Bill introduced May 2, 2006– Senator John Cornyn (R-TX)– Senator Joe Lieberman (D-CT)

• Provide public access to tax-payer funded research published in peer-reviewed journals– Maximize dissemination and use of government-funded research

findings– Make research readily, easily and freely available via the World Wide

Web

• Applies to Federal Agencies with research budgets of $100 Million– Agriculture, Commerce, Defense, EPA, Education, Energy, Health &

Human Services, Homeland Security, Transportation, NASA, NSF

FRPAA Provisions

• Applies to works resulting from full or partial government funding that are authored or co-authored by:

• Government employee– Works remain in the “public domain*” – Works be marked as being “public domain” material when

published– Works be made immediately available

• Contractor and grantee– Government license provides for reproduction, publication,

release or other uses for Federal purposes– Works be made available no later than 6 months after

publication

Background

• US Copyright Law & Berne

• Definitions– Government Works– Government Information– Copyright Management Information

• Digital Environment– Everything online– E-commerce – ownership & control– Collectives & collaboratives – shared & open– All require and operate under rules & standards

COPYRIGHT LAW OF THE UNITED STATESChapter 1 Subject Matter and Scope of Copyright

http://www.copyright.gov/title17/92chap1.html#105

US Government Works

US Copyright Law& the Berne Convention

• US ratified in 1989– Leading multilateral treaty on copyright– 130 countries

• Based on the principle of national treatment – Countries are obliged to grant the same protection to foreign

works that they grant to domestic works.

• Sets minimum standards of protection– No formalities required

• Copyright exists at time of fixation• Notice is voluntary• Registration is not necessary

– Term of protection is 70 years plus life of the author– Moral rights

Before Berne No notice – Assume not copyrighted

• The law placed the burden on authors to:– Mark their work with a notice

© (Year of Publication) Author– Register and deposit the work with the U.S. Copyright

Office– Apply for registration renewals

• Copyright forfeited for failure to comply with formalities

After Berne No notice – Assume copyrighted

• The law places the burden on the user to– Investigate the copyright status of a work and– Determine if their use is beyond

• Exceptions provided in the law(Title 17 USC, Secs 107-121) or

• Licenses or permissions.

Government WorksElement of Uncertainty

• Government practice is not to provide notice for Government Works– “Unless otherwise stated…”– In absence of a notice, assume not copyrighted.

• Contradicts US Copyright Law– Pre-Berne (before 1989)

No notice default-- assume not copyrighted.Practical and reasonable

– Post-Berne (after 1989)No notice default -- assume copyrighted!

U.S. Government Publications

• CENDI Copyright FAQ 3.1.6If an item has a GPO number (#) or an Agency number (#), can I assume it is not copyrighted?

• No, not all Government Printing Office or Government agency publications are U.S. Government works. For example, Government Printing Office publications and Agency publications may include works copyrighted by a contractor or grantee; copyrighted material assigned to the U.S. Government; or copyrighted information from other sources.

• GPO Report on the Assessment of Electronic Government Information Products, 1999. http://www.access.gpo.gov/su_docs/nclisassement/report.html

• Finding: 15% of the products surveyed are not in the public domain, for all or part of the product.

Public release does not equal public domain

• Government Information – Definition

• OMB-A130• Title 44 USC §1901, §3301• Broad scope

– May be copyrighted• Contractor/Grantee• Pre-existing or commercial

copyright• Assignment

• Government Works– Definition:

• Title 17 USC §101, § 105

• Narrow scope

– Not copyrighted• Public domain in

U.S.• Foreign copyrights?

Government Publication Title 44 USC §1901

   "Government publication" as used in this chapter, means informational matter which is published as an individual document at Government expense, or as required by law.

Government Records Title 44 USC §3301

• are all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics

• made or received by an agency of the United States Government under federal law or in connection with the transaction of public business and

• preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them.

• Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.

Digital Millennium Copyright Act (DMCA) 17 USC Sec 1201

• Definition– Identifying information about a work, author, copyright owner (or not) as

well as terms and conditions for use of the work.

• Prohibits:– Intentional removal or alteration of copyright management information

and

– Knowing addition of false copyright management information

– If these acts are done with intent to induce, enable, facilitate or conceal a copyright infringement.

Title 17 USC, Chapter 12 Copyright Protection and Management Systems 1202. Integrity of copyright management information

• (c) Definition. - the term "copyright management information" means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form…

• (1) Title• (2) Notice of copyright.• (3) Author of a work.• (4) Copyright owner• (5) Writer, performer, or director who is credited in the audiovisual work.• (6) Terms and conditions for use of the work.• (7) Identifying numbers or symbols referring to such information or links to

such information.

Creative Commons Modelhttp://creativecommons.org

• Goal: To "build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules.“

• Some rights reserved.

• System of visible markings and digital licenses that specify terms and conditions of use.

Creative Commons ModelInformation attribute & search criteria

It’s happening anyway!http://en.wikipedia.org/wiki/Wikipedia:Image_copyright_tag

s#USA_public_domain_images