Copyrights in the United States Government (Training)

UNCLASSIFIED 1 02/20/2014

Copyright Training for

MEDCOM Personnel


Disclaimers

2 4/14/2014

DISTRIBUTION STATEMENT A. Approved for public release; distribution is unlimited.

U.S. GOVERNMENT DISCLAIMER NOTICE. The views expressed in this presentation are those of the author and do not necessarily reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government. The information appearing on this presentation is for general informational purposes only and is not intended to provide legal advice to any individual or entity. Please consult with your own legal advisor before taking any action based on information appearing in this presentation or any sources to which it may cite.

UNLESS OTHERWISE STATED


History

Basics

Copyright in Government

Fair Use

Data/Software

Marking

Copyright Resources

Agenda



Copyrights the

“Metaphysics of the Law” In 1841 Justice Story wrote that “[Copyrights] approach, nearer than any other class of cases belonging to forensic discussion, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and sometimes, almost evanescent.“ Justice Joseph Story Folsom v. Marsh, 9 Fed. Cas. 342, 344, No. 4901 (c. C.D. Mass,1841)


A Little History: The earliest recorded historical case-law on the right to copy comes from ancient Ireland. The Cathach is earliest example of Irish writing. Around 560 AD St. Columba copied it from St. Finnian causing a controversy that precipitated the Battle of Cúl Dreimhne in 561 AD (3000 dead).

King Diarmait Mac Cerbhaill gave the judgment : "To every cow belongs her calf, therefore to every book belongs its copy

http://en.wikipedia.org/wiki/File:CathachOfStColumba.jpg


Very first modern copyright law was the Statute of Anne. which was passed in 1710 in the Kingdom of Great Britain

800 authors, printers and book dealers were incarcerated in the Bastille before it was stormed in 1789.

http://upload.wikimedia.org/wikipedia/commons/e/ec/Statute_of_anne.jpg

http://en.wikipedia.org/wiki/File:Anne1705.jpg


In North America the colonies adopted a similar system of limited monopolies. Following the revolution in 1788 Article I, section 8 of the Constitution was ratified:

'The Congress shall have power . . . to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries'.


• 10 U.S.C. 2320 – Technical Data Rights • 10 U.S.C. 2386 – Acquisition of Copyrights, Patents, Designs, etc.

Title 10 USC (Armed Forces)

Title 15 USC (Trademarks)

Title 17 USC . (Copyrights)

• 18 U.S.C. 1905 – Disclosure of Confidential Information.

Title 18 USC (Trade Secrets)

• 28 U.S.C. 1498 – Patent and Copyright cases.

Title 28 USC (US Court of Federal Claims)

Title 35 USC (Patents)

Title 44 USC (Public Printing and Documents)


• Is it Copyright Protected?

•Who owns the Copyright?

•What rights exist?

•Any defenses?


What is Protected: Section 102(a)

§ 102. Subject matter of copyright: In general a) Copyright protection subsists, in accordance with this

title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.


Subject matter of Copyright Section 102(a) continued:

(1) literary works (including software);

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.


Not Proper Subject Matter

OSJA USAMRMC Nov 2003

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.


What is not protected

• Works that have not been fixed in a tangible form of expression (performances that have not been written or recorded)

• titles, names, short phrases, and slogans; familiar symbols or designs;

mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

• Facts and works consisting entirely of information that is common

property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)


What is not protected Section 105 U.S. Government Works

Copyright protection under this title is not available for any work of the United States Government, but

the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise.

• This provision does not affect works by the States or works by foreign governments.

• U.S. Government may claim copyright in works abroad.


What About?

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• Standards (HL7, ISO)

• Checklists

• Data/Databases (US vs. EU/AU/CA)

• Design Concepts/GUI/Trade Dress

• News (Stock Prices, Sports Scores)

• Fashion Designs

• Created Facts (Polls, Surveys, Economic Reports)





•Any defenses?


Who Can Claim Copyright • the work of authorship immediately becomes the

property of the author who created the work • works made for hire, the employer and not the

employee is considered to be the author • if the parties expressly agree in a written instrument

signed by them that the work shall be considered a work made for hire


COPYRIGHTS Misinterpretations = Liability

OWNERSHIP ≠ NOTICE

Neither a copyright notice nor registration is required for an infringement to occur


Work Made For Hire work made for hire includes: 1) work prepared by an employee within the scope

of employment and 2) work specially ordered or commissioned for use as a contribution to a collective work, a part of an audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas


Copyright Terms – pre 1978


Source: http://copyright.cornell.edu/resources/publicdomain.cfm


JOINT WORKS

• If a work is created jointly by government and contractor employee, contractor can copyright portion it contributed to.

• Government retains royalty-free license to exercise the copyright for governmental purposes

• Contractors can re-package government works and make money off the product!





•Any defenses?


The Bundle of Rights: Section 106

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;


Section 106 Continued (4) in the case of literary, musical, dramatic works, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.



Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright.


First Sale Doctrine 17 U.S.C. §109

The owner of a particular copy or phonorecord that was lawfully made is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.





•Any defenses?


COPYRIGHTS

THE ELEMENTS OF INFRINGMENT 1

• Ownership of a valid copyright;

2 • Actual copying;

3 • Of protected constituent

elements


Waiver of Sovereign Immunity

Copyright/Patent Infringement – 28 USC 1498

Trademark Infringement - 15 USC 1122(a)

Trade Secret Misappropriation – FTCA (State Law); CDA; Tucker Act



14 U.S.C. 1498 • Exclusive Action/No Injunction • Court of Federal Claims • Reasonable Damages • 3 years Statue of Limitation


COPYRIGHTS

Defenses

Use of Federal

Resources Fair Use License


COPYRIGHTS Defenses

Use of Federal Funds or Resources

No claim where copyrighted work was prepared with “. . . Government time, material, or facilities . . .” 28 U.S.C. § 1498(b)


FAIR USE

DoJ Guidelines for Government Reproduction of Copyrighted Materials

“However, there is no basis for concluding that the photocopying of copyrighted materials by the federal government automatically or invariably constitutes a fair use.”


Section 107 - the preamble Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-


The Factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


The Factors - continued

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.





COPYRIGHTS FAIR USE

DoJ Guidelines for Government Reproduction of

Copyrighted Materials

(a) Photocopying more likely will be deemed “fair” where the photocopies are disseminated to a discrete and limited audience within the government. To the extent that copies are sold, or distributed broadly, especially outside the government, that likely would weigh against a finding of fair use.


COPYRIGHTS FAIR USE



(b) Copying that is done "spontaneous[ly]," for the purpose of facilitating an immediate and discrete objective, is more likely to be a fair use than systematic "archival" copying of extensive materials for possible future use.


COPYRIGHTS FAIR USE



(c) Copying materials for the purpose of collecting or studying certain facts or ideas contained therein -- as opposed to the work's original expression -- increases the likelihood that the reproduction will be a fair use.

http://librarycopyright.net/resources/fairuse/

Source: http://librarycopyright.net/fairuse/




Do not distribute or access YouTube content except through means that YouTube makes available. Translation: don't download YouTube videos unless there's a download link on the YouTube page or you have permission from the copyright holder. Uploading content to YouTube means that the author grants each user of the Service a non-exclusive license to access the Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. Details may be found on YouTube's Terms of Service webpage: http://www.youtube.com/t/terms.

YouTube Videos



Contracts Copyrights/Technical Data/Software/Documentation

• K Owns Title to Copyrights except Special Works (7020)

• Contractor Must Provide Assertion List/Restrictive Legends

• Government Receives 1 of 3 Licenses:

1. Unlimited

2. Government Use

3. Restricted - Limited (no less than)

• Parties MAY negotiate special terms

• Contractor must secure third party copyrights

• Use commercial terms not contrary to federal law


Government Data Rights

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SOURCE: http://www.acq.osd.mil/log/mr/psm/09_technical_data_rights_acquisition_strategy_guertin_2nov2011_v2.pdf

http://www.acq.osd.mil/log/mr/psm/09_technical_data_rights_acquisition_strategy_guertin_2nov2011_v2.pdf

http://www.dtic.mil/dtic/submit/guidance/distribstatement.html



So what about Plato and Aristotle?


COPYRIGHTS Best Practices

• Communicate with your IT department (does it have a web page hit counter?) • Look for involvement of government funds and resources. • Suggest public domain materials:

• http://creativecommons.org/ • http://commons.wikimedia.org/ • http://en.wikipedia.org/wiki/Public_Domain_Resource

• Have a release readily available (see handout). • Ask for help

http://creativecommons.org/

http://creativecommons.org/

http://commons.wikimedia.org/


COPYRIGHTS Resources

•http://www.usdoj.gov/criminal/cybercrime/fairuse.htm •https://acc.dau.mil/CommunityBrowser.aspx?id=30842 •http://fairuse.stanford.edu/ •http://www.copyright.gov/circs/

http://www.usdoj.gov/criminal/cybercrime/fairuse.htm

http://www.usdoj.gov/criminal/cybercrime/fairuse.htm

http://fairuse.stanford.edu/

http://www.copyright.gov/circs/

DoD Directives: 5105.60 National Geospatial-Intelligence Agency (NGA) PDF 5105.74 Defense Media Activity PDF 5120.20 Armed Forces Radio and Television Service (AFRTS) PDF 5122.05 Assistant Secretary of Defense for Public Affairs (ASD(PA)) PDF 5160.48 DoD Public Affairs and Visual Information(PA&VI) Education and Training (E&T) PDF 5230.09 Clearance of DoD Information For Public Release PDF 5400.07 Freedom Of Information Act (FOIA) Program PDF 8000.01 Defense Information Management (IM) Program Source: http://www.defenseimagery.mil/learning/vipolicy/dodd.html

Government Printing and Binding Regulations S. Pub 101-9 (Published by the Joint Committee on Printing U.S. Congress). DODI 5330.03 – Documentation Automation and Production Service (DAPS) DoDI 5040.02 – Visual Information DoDI 5040.07 – Visual Information (VI) Production Procedures DoDI 5230.24 Distribution Statements on Technical Documents DoDI 5410.15 – DoD Public Affairs Assistance to NGE Print and Electronic Media DoDI 5410.16 – DoD Public Affairs Assistance to NGE Movie, TV and Video DoDD 5535.4 – Copyrighted Sound and Video Recordings Army Regulations: AR 25-1 Army Knowledge Management and Information Technology AR 25-30 The Army Publishing Program AR 27-60 Intellectual Property AR 70-14 Publications and Reprints of Articles in Professional Journals. AR 70-31 Standards for Technical Reporting AR 70-45 Scientific and Technical Information Program AR 360-1 The Army Public Affairs Program Army Pamphlet: DA Pam 25-40 Army Publishing: Action Officers Guide.