|CENDI Home Page|
| TABLE OF CONTENTS
|| Prepared by
CENDI Copyright Task Group
Edited and updated by
Bonnie Klein & Gail Hodge
Information International Associates, Inc.
Purpose and Use of This Document
This document is prepared by the CENDI Copyright Task Group in response to a request from the task group members and CENDI principals to address the issue of copyright from an operations perspective. In 1997, the CENDI Task Group identified a series of questions concerning copyright and intellectual property. These were documented as part of the Task Group's report, "Copyright and Intellectual Property: Operational Issues for CENDI Agencies." Realizing that it was not in a position to provide guidance for any particular agency, CENDI developed the concept of a Frequently Asked Questions document (FAQ) that could be used to educate librarians, information center staff, publications staff and agency authors about copyright.
The Copyright Law is complex and situation-based. Therefore, professional counsel for specific cases is advised. However, it is also hoped that this document will serve as a template for the development of agency Office of General Counsel approved documents that can provide more specific guidance for the individual agencies. It should be noted that this document primarily addresses U.S. Copyright Law as provided at Title 17 of the United States Code (17 USC - Copyrights) and Title 37 of the Code of Federal Regulations, Chapter II (37 CFR, Chapter II - Copyright Office, Library of Congress).
This is a work of the U.S. Government and is not subject to copyright protection in the United States. Foreign copyrights may apply.
Notice of Change
The information presented in this FAQ is subject to changes enacted by U.S. Government policies, legislation and case law. Direct comments about this document to firstname.lastname@example.org.
TABLE OF CONTENTS
|1.0||GLOSSARY OF TERMS|
|3.0||U.S. GOVERNMENT WORKS
|4.0||WORKS CREATED UNDER A FEDERAL CONTRACT OR GRANT
|5.0||USE OF COPYRIGHTED WORKS
|6.0||APPLICABLE COPYRIGHT LEGISLATION AND OTHER RESOURCES
ON THE INTERNET |
CENDI COPYRIGHT TASK GROUP
CURRENT MEMBERS: Nancy Allard (NARA), Gary Borda (NASA), Kathleen Coleman (EPA), Richard Gray (DOD/AF), Jane Griffith (NLM), Gail Hodge (CENDI), Michael Hoffman (DOE), Richard Huffine (EPA), Flayo Kirk (DISA), Bonnie Klein, Chair (DTIC), Richard Lambert (NIH), Neil Mark (USGS), John Raubitschek (NTIS), Jacqueline Streeks (NASA/CASI)
PAST MEMBERS: Barbara Bauldock (USGS), Nancy Cavanaugh (NLE), Nancy Collins (NTIS), Wally Finch (NTIS), Ed Humphries (NAIC), Sharon Jordan (DOE/OSTI), Kate Kase (USGS), Eve-Marie Lacroix (NLM), Lowell Langford (DOE/OSTI), Jan McNutt (DISA), Eric Vogel (NASA CASI)
|CENDI is an interagency cooperative organization composed of the scientific and technical information (STI) managers from the Departments of Agriculture, Commerce, Energy, Education, Defense, the Environmental Protection Agency, Health and Human Services, Interior, and the National Aeronautics and Space Administration (NASA), the National Archives and Records Administration, the National Science Foundation and the Government Printing Office. CENDI's mission is to help improve the productivity of federal science- and technology-based programs through the development and management of effective scientific and technical information support systems. In fulfilling its mission, CENDI member agencies play an important role in helping to strengthen U.S. competitiveness and address science- and technology-based national priorities.|
1.0 GLOSSARY OF TERMS
Author, under the U.S. Copyright Law, is either the person who actually creates a copyrightable work or, if the copyrightable work is created within the scope of employment, the employer of the person who actually creates the copyrightable work.
Berne Convention1 is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions to these documents.Clearance - see Permission
Collective work is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
Compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works.
Copyright refers to the exclusive rights granted to an author or owner of a copyrightable work. (See FAQ Section 2.1 and 17 USC § 106.2)
Copyright Management Information (CMI) is defined under the Digital Millennium Copyright Act (DMCA)3 as identifying information about a work, author, copyright owner, and in certain cases, the performer, writer or director of a work, as well as terms and conditions for use of the work, and such other information as the Register of Copyrights may prescribe by regulation. (See FAQ Section 2.4.6 and 17 USC § 1202(c).4)
Copyright owner, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. The exclusive rights provided by Copyright are completely divisible. Copyright in a work vests initially in the author or authors of the work. However, the author may assign some or all of his or her rights to another, e.g., to a publisher, if the work has appeared in a formal publication, who then becomes the owner of the rights assigned.
Derivative Work refers to a work that is based on, or modifies, one or more preexisting works. A copyright owner has the exclusive right to prepare or authorize the preparation of a derivative work based on the copyrighted work. If a derivative work, considered as a whole, represents an original work of authorship, it may be separately copyrightable. However, the copyright covers only original portions of the derivative work.
Fair Use is a statutory exception that allows the use of a copyrighted work for certain purposes without requiring permission. (See 17 USC § 1075).
Federal Acquisition Regulation (FAR)6 was established to codify uniform policies for acquisition of supplies and services by executive agencies. It is issued and maintained jointly, pursuant to the OFPP Reauthorization Act, under the statutory authorities granted to the Secretary of Defense (DoD), Administrator of General Services (GSA) and the Administrator, National Aeronautics and Space Administration (NASA). The official FAR appears in the Code of Federal Regulations at 48 CFR Chapter 1.
First Sale Doctrine refers to the right of a buyer of a material object in which a copyrighted work is embodied to resell or transfer the object itself. Ownership of copyright is distinct from ownership of the material object. Section 109 of the Copyright Act permits the owner of a particular copy or phonorecord lawfully made under the Copyright Law to sell or otherwise dispose of possession of that copy or phonorecord without the authority of the copyright owner. Commonly referred to as the "first sale doctrine," this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and sound recordings. (See 17 USC § 2027 and 17 USC § 1098.)
Government Distribution or Dissemination means, in accordance with OMB Circular A-130,9 Management of Federal Information Resources, the Government initiated distribution of information to the public. Dissemination within the meaning of the Circular does not include distribution limited to government employees or agency contractors or grantees, intra- or inter-agency use or sharing of government information, and responses to requests for agency records under the Freedom of Information Act (FOIA) (5 U.S.C. § 55210) or Privacy Act11.
Government Publication is informational matter that is published as an individual document at Government expense or as required by law. (See Title 44 USC § 190112)
Government Records 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. (See 44 USC § 330113)
U.S. Government Work or a "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of that person's official duties. (See 17 USC § 101. Definitions.14) In these FAQ's, the term "U.S. Government work" will be used to refer to a work of the United States Government and is distinct from works of state governments. (See FAQ Section 3.1.3).
Intellectual Property refers to intangible property rights such as copyright, patents and trademarks that provide the owner with certain exclusive rights.
Joint Work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. (See 17 USC § 101. Definitions.15) The authors of a joint work are co-owners of copyright in the work. (See 17 USC § 201(a).16)
License is a contractual agreement from a copyright owner or the owner's authorized agent, such as a third party vendor, allowing another party to exercise one or more of the exclusive rights provided the copyright owner under the Copyright Law (See FAQ Section 2.1.5). Licenses usually involve the payment of a fee or royalty. However, royalty free licenses are also legally possible; for example, see the National Library of Medicine License Agreement for Use of the UMLS® Metathesaurus®.17
Permission is an agreement from a copyright owner allowing another party to exercise one or more of the exclusive rights provided the copyright owner under the Copyright Law (See FAQ Section 2.1.5. Permission generally does not involve the transfer of any fees or reimbursements. Permission may also be referred to as a Copyright Release.
Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. (See 17 USC § 101. Definitions.17)
Transfer of copyright ownership is the act of transferring any or all of the exclusive rights comprised in a copyright from the copyright owner to another person or institution. Ownership is generally transferred through an assignment, mortgage, or exclusive license, whether or not it is limited in time or place of effect, but not including a nonexclusive license. (See 17 USC § 201(d)(2).18) Transfers must be in writing and must be signed by the party making the transfer. (See 17 USC § 204.19)
2.0 COPYRIGHT BASICS
2.1 General Information Regarding Copyright
Copyright is a form of protection provided by the laws of the United States (Title 17 of the United States Code (17 USC - Copyrights20) to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works. (See also Title 37 Code of Federal Regulations (37 CFR, Chapter II)21, which implements this statute.) Copyright protection arises automatically once an original work of authorship is fixed in a tangible medium of expression, now known or later developed; e.g., written, filmed, recorded. It does not require that a copyright notice be placed on the work, that the work be published, or that the work be deposited or registered with the Copyright Office or any other body.
The basis for Copyright Law comes from the U.S. Constitution, Article 1, Section 8.22
"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 Writings and Discoveries."
The first federal Copyright Act enacted in 1790 was a codification of longstanding judicial doctrine. Since that date, Congress has periodically enacted major copyright revision bills modernizing the statute. The last copyright revision bill was enacted in 1976.
While most of the provisions of the current Copyright Law were contained in the Copyright Act of 1976, on a number of occasions Congress has amended that legislation to address new concerns. For example, in 1988 a number of changes were embraced to permit United States accession to the Berne Convention23. More recently, the copyright term was increased by the Sonny Bono Copyright Term Extension Act,24 and issues relating to digital works were addressed in the Digital Millennium Copyright Act.25 (See FAQ Section 2.4.6).
Copyright requires an original work of authorship to be fixed in a tangible medium of expression from which it can be perceived either directly or with the aid of a machine or device. Copyright protects the form of expression only and does not extend to the idea or concept underlying the work. (See FAQ Section 2.5, Other Forms of Intellectual Property Protection, for a discussion of the differences between copyright and other forms of intellectual property protection such as patents and trademarks.)
Categories of copyrightable works under Title 17 USC § 201 include: literary works such as educational materials and computer programs; musical works, including any accompanying words; dramatic works, including any accompanying music; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. For U.S. Government works, see FAQ Section 3.
Facts cannot be copyrighted. However, the creative selection, coordination and arrangement of information and materials forming a database or compilation may be protected by copyright. Note, however, that the copyright protection only extends to the creative aspect, not to the facts contained in the database or compilation.
As stated in 17 USC § 10626, copyright gives the owner of the copyright the exclusive right to do and to authorize others to do the following:
In addition, certain authors of works of visual art have the rights of attribution and integrity described in 17 USC § 106A27. Limitations are outlined in FAQ Section 2.2.1.
For further discussion, see U.S. Copyright Office, Circular 101: Copyright Basics,28 and Circular 40, Copyright Registration for Works of the Visual Arts.29
Under current Copyright Law, the copyright term for works created by individuals on or after January 1, 1978, is the life of the author plus 70 years. For "works made for hire," the copyright term is 95 years from the date of first publication or 120 years from the date of its creation, whichever is earliest. The copyright term for works created before January 1, 1978, is a complicated determination and may require help from your General Counsel or the Copyright Office.
The current Copyright Law established dates at which Copyright protection for unpublished works expires and those works pass into the public domain. Unpublished works created prior to January 1, 1978, and not published, will pass into the public domain 70 years after the author's death or at the end of 2002, whichever is later. Unpublished works created prior to January 1, 1978, but which are published between then and the end of 2002, will pass into the public domain 70 years after the author's death or at the end of 2047, whichever is later.
Additionally, all works published before 1923 are now in the public domain.
Publications that may help in this determination include:
The U.S. Copyright Law, Chapter 3 -- Duration of Copyright30
Information Circular 15a - Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection 31
Fact sheet FL 15 - New Terms for Copyright Protection32
When Works Pass Into the Public Domain33
Copyright Term and the Public Domain in the United States33a
No, the term of protection of a work is not affected by the fact that the owner has copied the work to another medium. If, in addition, new information is added, the new information if copyrightable could have its own term of protection.
2.2 Limitation on Copyright Protection
Yes, 17 USC §§ 107 through 12034 establish limitations or exceptions on these exclusive rights. One limitation is the doctrine of "fair use," which is set forth in 17 USC § 10735. (See FAQ Section 2.2.2 on Fair Use.) Other limitations include provisions for allowing compulsory licenses, use and copying by libraries, the sale of the work by the owner (See FAQ Section 1.0, Glossary, for definition of the "First Sale Doctrine") and uses which fall outside of the enumerated exclusive rights, such as performances that are not public.
A fair use of a copyrighted work may include the practice of any of the exclusive rights provided by copyright, for example, reproduction for purposes such as criticism comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. The "fair use" limitation found at 17 USC § 107,36 is not defined in the statute and does not provide a bright line rule for determining what is or is not a fair use. Rather it identifies four factors that should be evaluated on a case-by-case basis in order to determine if a specific use is "fair". These factors, which should be considered together when determining fair use, are:
The distinction between "fair use" and infringement can be unclear and is not easily defined. There is no right number of words, lines or notes that qualify as a fair use.
Yes, the "fair use" exception applies to the U.S. Government. As with any other user, the use of copyrighted information by Government agencies and employees is assessed by the fair use factors to determine if the use is "fair" under 17 USC § 107. (See FAQ Section 5.1.1)
Public domain refers to works that are not protected by copyright and are publicly available. They may be used by anyone, anywhere, anytime without permission, license or royalty payment.
A work may enter the public domain because the term of copyright protection has expired (see FAQ Section 2.1.6), because copyright has been abandoned, or in the U.S. because it is a U.S. Government work and there is no other statutory basis for the Government to restrict its access (see FAQ Section 3.1.4).
A work is not in the public domain simply because it does not have a copyright notice. Additionally, the fact that a privately created work is, with permission, included in a U.S. Government work does not place the private work into the public domain. The user is responsible for determining whether a work is in the public domain.
It is important to read the permissions and copyright notices on U.S. Government publications and Web sites. Many Government agencies follow the practice of providing notice for material that is copyrighted and not for those that are in the public domain. Examples of government agency copyright policies and statements are: National Library of Medicine,37 U.S. Air Force Museum,38 and Library of Congress.39
Yes. However, the copyright protects only the original contributions added by the author.
No, these terms are not synonymous and should not be used interchangeably. Public release, disclosure and dissemination describe the availability of a work. Publicly released, disclosed or disseminated information may be owned and protected by copyright, and therefore, not be in the public domain.
2.3 Ownership of Copyright
Copyright ownership may be held by any person or institution. Typically, the author of a work owns the copyright in the work. However, under the U.S. Copyright Law, for a work made for hire, that is a work prepared by an employee within the scope of employment or a specially ordered or commissioned work, the employer or other person for whom the work was prepared is considered the author.
Yes, any and all of the copyright owner's exclusive rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights being transferred. (See 17 USC § 204.40) Transfer of a right on a nonexclusive basis does not require a written agreement; however, you should check your Agency's policy.
No effective transfer of copyright can be made in the U.S. for U.S. Government works (see FAQ Section 3.0), because they are not eligible for copyright protection under the U.S. Copyright Law.
If you want to contact the copyright owner regarding use of a copyrighted work, the best place to start is with the work itself. Copyright notices in published works identify the owner at the time the work was published. However, copyright ownership may have changed since publication. The copyright notice and any permissions are often printed on the back of the title page in books. Most owners will be apparent, particularly for relatively current works. However, identifying the specific owner may be more difficult for journal articles, gray literature and older works. Affiliation of the author may suggest ownership or may help to locate the individual author, but is not in itself definitive. The U.S. Copyright Office provides some suggestions in Copyright Office Circular 22.41
Additionally, Copyright Office records, including registration information and recorded documents, are available through LOCIS (Library of Congress Information System42), or a newer web-based search system. Information, including ownership information, is available for works registered for copyright since January 1, 1978. The information may be searched online by title of the work, author and copyright claimant.
2.4 Copyright and the Internet
Yes, the Internet is another form of publishing or disseminating information; therefore, copyright applies to Web sites, e-mail messages, Web-based music, etc. Simply because the Internet provides easy access to the information does not mean that the information is in the public domain or is available without limitations. Copyrighted works found on the Internet should be treated the same as copyrighted works found in other media.
It depends. If the publisher has made original and creative contributions to the published work, the publisher may have some rights. Check with your General Counsel's Office or agency policy. Alternatively, the original manuscript as submitted to the publisher could be posted. (See FAQ Sections 3.2.3 and 3.2.4.)
Yes, fair use applies to materials and use of works found or placed on the Internet. The same factors will be considered as for fair use in print (see FAQ Section 2.2.2).
As in the print environment, it is not necessary for an author to include a copyright statement on the material in order for the work to maintain its copyright protection. However, you may find notices on the home page or on special terms and condition pages that provide for specific uses.
It is good practice to provide notice whenever possible, even though it is not required. In addition, there may be disclaimers and use notices that apply to use of the material. Check your Agency policy regarding Web site notices. See examples listed in Section 6.0.
No. In April, 2000, Federal Judge Harry L. Hupp in his ruling on deep linking
in Ticketmaster vs. Tickets.com (2000) states that, "...hyperlinking
does not itself involve a violation of the Copyright Act (whatever it may
other claims) since no copying is involved." Many organizations encourage
links by posting terms and conditions and how-to instructions on their websites,
usually under the headings of Copyright, Legal Notices, or About Us. For examples,
see the Washington
Post43and the New
However, be aware of "other claims"
and court rulings which prohibit framing, misuse of trademarks, bypassing advertising,
Yes, the DMCA (Pub. L. No. 105-304, 112 Stat. 286045) added Chapter 12 to the U.S. Copyright Law46. The DMCA prohibits any person from circumventing a technological measure that effectively controls access to a work protected under the U.S. Copyright Act, 17 U.S.C. § 1201(a)(1)47. The Copyright Office will determine whether any classes of works should be subject to exemptions for the prohibitions and will publish lists of such exempt classes. The DMCA also makes it illegal for a person to manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component or part thereof which is primarily designed or produced to circumvent a technological measure that effectively controls access to or unauthorized copying of a work protected by copyright, has only a limited commercially significant purpose or use other than circumvention of such measures, or is marketed for use in circumventing such measures, 17 U.S.C. § 1201(a)(2)48.
In addition the DMCA prohibits, among other actions, the intentional removal or alteration of copyright management information and the knowing addition of false copyright management information if these acts are done with intent to induce, enable, facilitate or conceal a copyright infringement, 17 U.S.C. § 120249. Each prohibition is subject to a number of statutory exceptions.
The DMCA also provides certain limitations on service provider liability with respect to information residing, at direction of a user, on a system or network that the service provider controls or operates, 17 U.S.C. § 51250. However, this "safe harbor" provision may not be necessary for Government agencies qualifying as service providers because they are not liable for contributory copyright infringement (see FAQ Section 5.1.1).
Further, the DMCA creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair. For further discussion, see the U.S. Copyright Office Summary of the DMCA51.
2.5 Other Forms of Intellectual Property Protection
Yes, there are other forms of intellectual property protection including patents and trademarks. Copyright differs from patents and trademarks in both the terms and kind of coverage that is granted. Copyright protects original works of authorship such as literary works, phonorecords, dramatic works, etc. Patents52 protect new, useful and non-obvious inventions such as processes, machines, manufactures and compositions of matter. Trademarks53 protect words, phrases, symbols or designs, such as logos or names of products or organizations, that identify and distinguish the source of goods or services of one party from those of another. Each type of intellectual property differs in the subject matter and requirements for protection, the length of time that the protection holds, how it can be transferred, the basis and penalties incurred for infringement of the exclusive rights provided, and the kind of exemptions that are allowed. For more information, contact the U.S. Patent and Trademark Office.54
3.0 U.S. GOVERNMENT WORKS
3.1 Government Works
A "work of the United States Government," referred to in this document as a U.S. Government work, is a work prepared by an officer or employee of the United States Government as part of that person's official duties. (See 17 USC § 101, Definitions.55)
Contractors, grantees and certain categories of people who work with the government are not considered government employees for purposes of copyright. Also not all government publications and government records are government works (See FAQ Section 1.0, Definitions).
An officer's or employee's official duties are the duties assigned to the individual as a result of employment. Generally, official duties would be described in a position description and include other incidental duties. Official duties do not include work done at a government officer's or employee's own volition, even if the subject matter is government work, so long as the work was not required as part of the individual's official duty. (S.REP. NO. 473, 94th Cong., 2d Sess. 56-57) (1976) "A government official or employee should not be prevented from securing copyright in a work written at his own volition and outside his duties, even though the subject matter involves his government work or his professional field.") For further discussion, see Tresansky, John O. Copyright in Government Employee Authored Works. 56 30 Cath. L. Rev. 605 (1981).
The following cases give examples of some related issues:
Public Affairs Associates v. Rickover 57 284 F.2d 262, 268 n.20 (D.C. Cir. 1960), vacated on other grounds for insufficient record, 369 U.S. 111 (1962)
Herbert. v. United States, 36 Fed. Cl. 299 (Fed. Cl. 1996). The court said: "The specific task need not be individually assigned in order to qualify as part of the official functions of a government employee. Where a government employee's official functions include research, generally, the employee may lose the right to sue for copyright infringement even where he was not specifically required to perform the work at issue."
In the United States, U.S. Government works are covered by 17 USC § 105.58 "Copyright protection … is not available for any work of the United States Government, but the United States is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." Exceptions are available for certain works of the National Institute for Standards and Technology (NIST) and the U.S. Postal Service. Copyright protection may be available for U.S. Government works outside the United States (see FAQ Section 3.1.6). When a copyrighted work is transferred to the U.S. Government, the Government becomes the copyright owner and the work retains its copyright protection.
Ever since 1895, statutory provisions have prohibited the assertion of copyright in any publication of the U.S. Government. The provisions have been only slightly modified since their enactment. See "Copyright in Government Publications: Historical Background, Judicial Interpretation, and Legislative Clarification." CPT Brian R. Price. Military Law Review. Vol. 74. (1976), p. 19-63.
No. The fact that U.S. Government works are not protected under the U.S. Copyright Law does not create a requirement that all U.S. Government works be made publicly available without restriction (See Gellman, Robert M. Twin Evils: Government Copyright and Copyright-like Controls Over Government Information. Syracuse Law Review, 999, 1995. ADA394923 59). See Pfeiffer v. Central Intelligence Agency 60, 60 F.3d 861 (D.C. Cir. 1995). Federal laws and agency policies govern the public release of U.S. Government information. Examples include OMB Circular A-130,61 Management of Federal Information Resources, Department of Defense Directive 5230.9 Clearance of DoD Information for Public Release, April 9, 1996, ASD (PA)62 and DOD Instruction 5230.29 Security and Policy Review of DoD Information for Public Release.63 However, while the Government is not required to publicly disseminate all U.S. Government works, the Government does not restrict the use or distribution of most categories of U.S. Government works.
Despite the general policy of free and open information dissemination, there are exceptions based on a number of factors. Certain statutes (see Freedom of Information Act (FOIA) Exemptions)64 provide the Government with authority to restrict access to U.S. Government works, for example, for purposes of national security, export control, and the filing of patent applications. U.S. Government works should undergo appropriate security, export control and policy reviews by the releasing agency before being cleared for public availability. Additionally, for the purposes of specific agreements, such as Cooperative Research and Development Agreements (CRADA's65 ) and NASA Space Act Agreements66 , the Government has statutory authority to withhold from public dissemination, including dissemination under FOIA, certain Government produced information for a specified period of time.
Some agencies may have additional statutory authority to impose conditions for use. Reasons include ensuring that copyrighted information contained in the government product is recognized, adhering to agreements with other parties, and maintaining contact with users to ensure maintenance and updating of critical information. For example, see NLM's Terms and Conditions for the Visible Human Project67 and the License Agreement for Use of the UMLS® Metathesaurus®.68 Issues related to joint authorship or sponsorship with non-government authors or organizations may also arise.
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.
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.
No, but while such a notice is not required, it is helpful to potential users of the material to identify any rights the Government may or may not have in the work. Agencies may have policies about providing notice. For more information, consult your General Counsel.
A good example of a notice is:
This is a work of the U.S. Government and is not subject to copyright protection in the United States. Foreign copyrights may apply.
To avoid confusion in situations where Government works are included in compilations with non-government material, the Government should put notices on every copyrighted item included in a U.S. Government work. Documentation related to permissions granted to the Government for use of such works should be retained.
In accordance with 17 USC §105, works prepared by government employees as part of their official duties are not subject to copyright protection in the U.S. (See FAQ Sections 3.1.1 and 3.1.2). This applies to government employee prepared works posted to government Web sites and to the government website itself if government employees as part of their official duties prepare it.
However, if a government web site is developed or maintained by a contractor, parts of the web site authored by the contractor that are subject to copyright protection (i.e., that qualify as copyrightable subject matter) are protected by copyright. Ownership of the copyright and the respective rights of the Government and the contractor are in accordance with the terms of the contract under which the web site was developed or maintained. Additionally, it is possible that copyrighted works owned by others may be posted to government web sites. Copyrighted works that are not owned by the Government should be included on government web sites only with permission of the copyright owner and should include an appropriate copyright notice.
3.2 Government Works Included In Non-Government Works
A publisher or individual can republish a U.S. Government work, but the publisher or individual cannot legally assert copyright unless the publisher or individual has added original, copyright protected material. In such a case, copyright protection extends only to the original material that has been added by the publisher or individual. (See 17 USC § 40369 regarding copyright notice requirements for works incorporating U.S. Government works.)
No, a U.S. Government work is not protected by copyright in the U.S (see FAQ Section 3.1.2). However, other works in the proceedings may be copyrighted (see FAQ Section 2.1.4). Additionally, the creative aspect of the compilation of materials, e.g., selection, coordination or arrangement, may be protected by copyright.
Assuming the article is written by a government employee as part of his or her official duties and the publisher does not add original, copyright protected content, then the government may reproduce and disseminate an exact copy of the published work either in paper or digital form. (Matthew Bender & Co. v. West Publishing Co.,70 158 F.3d 674 (2d Cir. 1998), cert. denied, 119 S. Ct. 2039 (1999)).
Yes, U.S. Government works as originally submitted to the publisher (e.g., manuscripts, charts, photographs, etc.) may be reused in another publication.
No, a paper, report, or other work prepared by an employee of the U.S. Government as part of that person's official duties is a U.S. Government work. Copyright protection is not provided for U.S. Government works under U.S. Copyright Law. Therefore, there is no U.S. Copyright to be transferred. U.S Government employees should inform the publisher of their employment status and should not sign any document purporting to transfer a U.S. copyright as a prerequisite to publication.
Additionally, a U.S. Government work may be protected under foreign copyright laws. The law of the foreign country governs ownership of foreign copyrights in U.S. Government works. The owner of the copyright may license or transfer a foreign copyright. The transfer of a foreign copyright owned by the U.S. Government must be executed by an authorized official of the Agency, who is almost never the U.S. Government author.
Many publishers have standard forms that provide a specific space for authors to indicate that they are U.S. Government employees or that they are working on the Government's behalf. For examples, see the IEEE Copyright Form71 and the Kluwer Academic/Plenum Publishing Transfer of Copyright Form72.
However, many publishing agreements include other terms, such as indemnification or choice of law that the government employee may not have authority to accept. Employees should seek approval from their own organizations before signing such agreements.
The following is an example of wording for a permission form from the National Library of Medicine that can be suggested to a publisher.
The U.S. Copyright Act provides that federal government employees cannot copyright material prepared in the course of their employment. As an employee of the [name department or agency], I have no copyright interest to assign, and upon the recommendation of the Office of General Counsel, [acronym for department or agency], must decline to sign the copyright assignment.
Although for the above reasons I am technically unable to assign any copyright to [name publication], I still request and authorize you to publish the submitted article in accordance with your standard editorial policies. I hope this letter will be sufficient authorization for your needs to enable you to consider it favorably.
A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole (see 17 USC § 101.73). The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary (see 17 USC § 201.74).
If a joint work is interdependent, contributions are generally created independently by separate co-authors with the intention to merge them into a unitary whole, and therefore they comprise separable parts. One should be able to isolate the contributions of a government employee from the contributions of a non-government employee. If, on the other hand, co-authors collaborated on much or all of a joint work, it will be considered inseparable, and it may be impossible to determine where the contributions of one author end and the other author or authors begin. Therefore, for an inseparable joint work, it is difficult or impossible to isolate the contribution of government employees from contributions of non-government employees. When the U.S. Government is joint author with a non-government entity, the law on how much of the work is protected by copyright is unsettled and is thus open to differing interpretations. In such situations, you should consult your Office of General Counsel.
Moreover, while the Copyright law provides that authors of a joint work are co-owners of the work, the law regarding how much the Government, as a joint author, may own is unsettled and thus open to differing interpretations. The notes following section 201 of the Copyright Act (17 U.S.C §201) state that, "Under the bill, as under current law, co-owners of a copyright would be treated generally as tenants in common, with each co-owner having an independent right to use or license the use of a work, subject to a duty of accounting to the other for any profits." Nonetheless, to protect the Government's interests, it would be prudent to obtain a license from the non-government co-owner to use and distribute the work.
Since joint authorship is a collaboration in which the authors have the intent from the beginning to create an integrated work, when it is anticipated that a government employee will participate as a joint author of a work arising under a contract or assistant agreement, it is advisable to consult your General Counsel and the outside author concerning the unsettled nature of the law.
4.0 WORKS CREATED UNDER A FEDERAL GOVERNMENT CONTRACT OR GRANT
4.1 If a Work Was Created Under a Government Contract, Who Holds the Copyright?
Unlike works of the U.S. Government, works produced by contractors under government contracts are protected under U.S. Copyright Law. (See Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981), cert. denied, 455 U.S. 948 (1982).) The ownership of the copyright depends on the terms of the contract. Contract terms and conditions vary between civilian agencies or NASA and the military.
Civilian agencies and NASA are guided by the Federal Acquisition Regulations (FAR)75. There are a number of FAR provisions that can affect the ownership of the copyright (see also FAQ Section 4.2 on data rights in SBIR contracts and Section 4.6 on the data rights for special works). FAR Subpart 27.4--Rights in Data and Copyrights76 provides copyright guidance for the civilian agencies and NASA. In addition, Agencies may have their own FAR Supplements that should be followed.
Under the FAR general data rights clause (FAR 52.227-14),77 except for works in which the contractor asserts claim to copyright, the Government has unlimited rights in all data first produced in the performance of a contract and all data delivered under a contract unless provided otherwise in the contract. Unless provided otherwise by an Agency FAR Supplement, a contractor may, without prior approval of the Contracting Officer, assert claim to copyright in scientific and technical articles based on or containing data first produced in the performance of a contract and published in academic, technical or professional journals, symposia proceedings, or the like. The express written permission of the Contracting Officer is required before the contractor may assert or enforce the copyright in all other works first produced in the performance of a contract. However, if a contract includes Alternate IV of the clause, the Contracting Officer's approval is not required to assert claim to copyright. Whenever the contractor asserts claim to copyright in works other than computer software, the Government, and others acting on its behalf, are granted a license to reproduce, prepare derivative works, distribute, perform and display the copyrighted work. For computer software the scope of the Government's license does not include the right to distribute to the public (see FAQ Section 4.3).
Occasionally there may be a special provision outside the FAR clauses that addresses data rights (this would also cover databases), but such provisions would have to be included in the contract, statement of work or other agreement that is in place. The specific language should be discussed with the Contracting Officer.
The Department of Defense (DoD) is guided by the Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 227.4 78and Part 21179 and Part 25280 provisions that affect the ownership of copyright for works created under contract. DFARS Subpart 227.4 81provides the copyright guidance for DoD (FAR 27.40082). The DFARS recognizes that the contractor owns the copyright for works created under contract (DFARS 227.7103-983, DFARS 252.227-7013-4)84. If a special clause is inserted into a contract (DFARS 252.227-702085), the contractor must assign the copyright to the Government.
While the Government has rights in more than just deliverables, as a practical matter the Government may have difficulty getting access to data unless it is either a deliverable or the contractor publishes it with a notice acknowledging the Government's sponsorship. The FAR requires an acknowledgment of Government sponsorship for contractor publications (see FAQ Sections 4.3 and 4.8). However, the DFARS does not. Therefore, it is advisable that works in which the Government desires rights are identified in the contract as deliverables. For software applications, the contract terms and conditions should also specify the format for delivery. If the Government needs to maintain or further develop the software program, it should consider expressly requiring delivery of source code.
4.2 Are Data Rights Any Different Under Special Programs Such as the Small Business Innovative Research (SBIR) Program?
Yes. In some cases, the particular program, such as the SBIR program, includes special copyright provisions. The FAR SBIR data rights clause, 52.227-2086 permits an SBIR contractor to assert copyright ownership unless there is specific language in the contract to the contrary. If claim to copyright is made, the Government gets the same license as it receives under the FAR general data rights clause, 52.227-11 (see FAQ Section 4.3). Additional restrictions on the Governments use of SBIR Data may apply. SBIR data is data first produced by an SBIR contractor in the performance of an SBIR contract that is not generally known and that is not already available to the Government or has not been made available to others without an obligation of confidentiality. If SBIR Data delivered to the Government is marked with the SBIR Rights Notice provided in the clause, the Government may use the data for government purposes only, and cannot disclose the data outside the Government (except for use by support contractors) for a specified period of time. This additional restriction is intended to provide incentives for the development or commercialization of the technology or product by the private partner.
4.3 If the Contractor is Allowed to Assert Copyright in a Work Produced Under a Government Contract, What Rights Does the Government Have?
A contractor's assertion of copyright in a work produced under a DFARS contract does not provide any restrictions to the Government's use of the work (see DFARS 227.7103-987 and 227.7203-988). In a FAR contract, if the contractor is permitted to assert copyright, the Government will acquire a license to the copyrighted work. The extent of the license may depend on the type of work created (see FAR 52.227-1489).
Under the FAR, when a contractor asserts copyright in a work first produced in the performance of a contract with a civilian agency or NASA, the contractor must place a copyright notice acknowledging the government sponsorship (including contract number) on the work when it is delivered to the Government, as well as when it is published or deposited for registration with the U.S. Copyright Office (see FAQ Section 4.8). If no copyright notice is placed on the work, the Government obtains unlimited rights in the work. Unlimited rights allow the Government to provide the work to another contractor and distribute the work to the public, including posting the work to a public web site. Otherwise, when claim to copyright is made the Contractor grants the Government, and others acting on its behalf, a license to the work.
The Government's license is a nonexclusive, irrevocable, worldwide license to use, modify, reproduce, release, perform, display or disclose the work by or on behalf of the Government. The Government may use the work within the Government without restriction, and may release or disclose the work outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the work on behalf of the government. The Government's license includes the right to distribute copies of the work to the public for government purpose. While the contractor may assign its copyright in "scientific and technical articles based on or containing data first produced in the performance of a contract" to a publisher, the Government's license rights attach to the articles upon creation and later assignment by the contractor to a publisher are subject to these rights. Under some FAR data rights clauses, if the work is a computer program, the right to release or disclose the computer program to the public is not included in the Government's license. If there is any question as to the scope of the Government's license, the Contracting Officer or your General Counsel should be consulted.
An example of a copyright statement, which includes a government license, for use with works created under contracts with civilian agencies and NASA is:
COPYRIGHT STATUS: This work, authored by ______________ employees, was funded in whole or in part by _________________ under U.S. Government contract _______________, and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.
4.4 Does the Government Have the Same Rights to Use Copyrighted Material Produced Outside of a Government Contract But Included in a Work Produced Under a Government Contract as it Does to Portions of the Work First Produced in Performance of the Contract?
It depends. Under both the FAR and the DFARS, the contractor may not include copyrighted material in the work created for the Government without identifying the copyrighted material to the Contracting Officer and obtaining the Contracting Officer's permission to incorporate the copyrighted material. Normally, the contractor provides a license to the copyrighted material equivalent to the license set forth in the contract. However, the contracting officer may approve a license of more limited scope if appropriate (see FAR 27.404(f)(2)90 and DFARS 227.7103-9(a)(2)91).
4.5 May a Government Contractor Voluntarily Transfer Its Copyright to the Government?
Yes. The Government is not precluded from receiving and holding copyrights transferred to it by assignment. (See 17 USC § 105) A Copyright assigned or otherwise transferred to the Government does not lose its copyright status or protection. The Government may record transfers of copyright with the U.S. Copyright Office and may register copyrights transferred to it.
4.6 Can a Contractor Be Forced to Transfer Its Copyright to the Government?
Yes. Under the FAR special works data rights clause, 52.227-17,92 in addition to requiring the Contracting Officer's written permission before a contractor may assert copyright ownership in material first produced under the contract, the Contracting Officer may instead direct the contractor to assign the copyright to the Government. Additionally, in accordance with FAR Section 27.404(g)(3)93, agencies may, to the extent provided in their FAR supplements, place limitations or restrictions on the contractor's right to use, release to others, reproduce, distribute, or publish any data first produced in the performance of the contract, including a requirement to assign copyright to the Government. Thus, Agency FAR supplements (e.g., the NASA FAR Supplement at 1852.227-1494 may also direct contractors in this way.
DFARS clause 252.227-702095 automatically directs the contractor to assign the copyright to the Government.
4.7 May a Contractor Use Works It Produced Under a Government Contract?
Yes, in most cases a contractor may use works it produced under a government contract. However, depending on the data rights clause in the contract, restrictions may apply. Under the FAR general data rights clause, 52.227-14,96 the contractor must obtain authorization from the Contracting Officer to assert claim to copyright in a work created under the contract or no copyright may be asserted (see FAQ Section 4.1). However, in either situation, the contractor shall have the right to use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the contractor in the performance of the contract, except to the extent such data may be subject to the federal export control or national security laws or regulations, may include restrictive markings or notices, or unless otherwise set forth in the contract (see FAR 27.404(g)97 and 52.227-14(d)98). Agency FAR supplements may include more restrictive terms including the right to require the contractor to assign the copyright to the Government.
Under the FAR special works data rights clause 52.227-1799, the contractor shall not use any work first produced in the performance of the contract for purposes other than the performance of the contract, nor shall the contractor release, reproduce, distribute, or publish any such work, nor authorize others to do so, without written permission of the Contracting Officer.
Likewise, DFARS clause 252.227-7013100 recognizes the contractor's copyright, while DFARS clause 252.227-7020 101 directs the contractor to assign the copyright to the Government. However, DFARS 227.7106(b)102 notes that a contractor "retains use and disclosure rights" even after such an assignment. Therefore, the Government must negotiate a special license if it wishes to restrict a contractor's use of works it produced under contract. There may be other restrictions to the contractor's use, such as export control, national security, etc.
4.8 Must a Contractor Place a Copyright Notice or Acknowledgement of the Government's Rights and Sponsorship on a Work Produced Under Government Contract?
Yes, the FAR requires that any contractor claiming copyright ownership to material first produced under a FAR contract affix the copyright notice and acknowledgement of government sponsorship (including the contract number) on all copies delivered to the Government, on all published copies, and on all copies deposited with the U.S. Copyright Office (See FAR 27.404(f)(1)(v)103), although the Copyright Law has no copyright notice requirement for works created on or after March 1, 1989. If these notices are not affixed, the Government has unlimited rights. See FAQ Section 4.3 for an example of a copyright statement for use with works created under civilian agency and NASA contracts.
Under the DFARS, a copyright notice is not required. (See DFARS 252.227-7013(f) and 252.227-7014(f)104.
4.9 What Are the Rules Regarding Works Produced Under Government Grants and Cooperative Agreements?
The data rights clauses in grants and cooperative agreements are flexible but generally allow the recipient to assert copyright. For works created under grants and cooperative agreements with colleges, universities, hospitals and non-profit organizations, all federal agencies adhere to the policies of OMB Circular A-110 Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations105 and to OMB Circular A-102, Grants and Cooperative Agreements with State and Local Governments106 when the grantee is a state or local agency such as a state university. Section 36 of Circular A-110107 provides that a grantee may assert copyright in any work that was developed under the grant or cooperative agreement. The Federal awarding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for federal purposes, and to authorize others to do so. It should be noted that new requirements for providing government access108to information created from grants and cooperative agreements were passed as part of the 1999 Omnibus Spending Bill.
Agencies may follow other policies with grants and cooperative agreements with
commercial firms. The terms of the particular grant or cooperative agreement
will specify respective rights of the parties. Which data rights clause is in
the grant or cooperative agreement, and its specific language, should be discussed
with the Grants Officer or your General Counsel.
5.0 USE OF COPYRIGHTED WORKS
5.1 Use of Non-Government Copyrighted Works in a U.S. Government Work
No, the U.S. Government can be held liable for violation of the Copyright Laws. Congress has expressly provided that a work protected by the Copyright Laws can be infringed by the United States (28 USC § 1498(b))109. The exclusive action for such infringement is an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of monetary damages. However, there is no contributory copyright infringement on the part of the Government because it hasn't waived sovereign immunity rights. (John C. Boyle, 200 F.3d 1369 (Fed. Cir. 2000)110.
While the Government may rely on fair use, the use of materials by the Government is not automatically a fair use. The U.S. Department of Justice, Office of Legal Counsel, has stated in a U.S. Department of Justice opinion dated April 30, 1999,111 that "while government reproduction of copyrighted material for governmental use would in many contexts be non-infringing because it would be a 'fair use' under 17 USC § 107, there is no 'per se' rule under which such government reproduction of copyrighted material invariably qualifies as a fair use."
Single copy reproduction of portions of a copyrighted work for use solely for official research or related purposes is ordinarily permissible. Additionally, there may be limited exceptions in the case of National Security where the public interest results in a privilege to the Government for use of the copyrighted work without the express consent of the copyright owner. (Key Maps, Inc. v. Pruitt, 470 F. Supp. 33 (S.D. Tex. 1978)) For further discussion, see "Application of the Copyright Doctrine of Fair Use to the Reproduction of Copyrighted Material for Intelligence Purposes"112 by Major Gary M. Bowen. The Army Lawyer (DA Pam 27-50-332), July 2000.
Individual citations are considered facts and are not protected by copyright. However, a collection of citations may have protection as a compilation. (See FAQ Section 2.1.4)
Government use of abstracts from copyrighted sources in abstracting and indexing (A&I) services or bibliographic databases should first look to any existing license agreements between the agency and the A&I service. The A&I service may have a license agreement with the publisher for use of copyrighted information for specific purposes. However, in most cases, the A&I service does not have the right to transfer this permission to subsequent users. Therefore, if abstracts are to be used in a published bibliography, it is best to seek the permission of the copyright owners.
No, copyrighted material contained in a U.S. Government work does not lose its copyright status and protection. The copyright status of non-government works in a compilation is not affected by the lack of copyright protection of other works in the compilation or by the fact that the U.S. Government publishes the compilation. When copyrighted materials are included in a Government work or a compilation published by the Government, a copyright notice indicating what portions of the work are protected by copyright, and identifying the copyright owner, should be included. (See Copyright Office Circular 1113)
Many foreign countries provide copyright protection for works of their government. However, certain types of official works of government bodies, such as statutes and court decisions, are generally not copyrighted. Many foreign governments will consider waiving copyright upon request.
International organizations, such as the United Nations and the World Bank, also hold copyright. However, many of these documents may contain waivers or waivers may be obtained upon request. Depending on the particular agreement, the U.S. Government may have additional rights based on contributing, paying or being a sponsoring member of the organization.
Translations are considered derivative works and whether the translation of the work is fair use should be evaluated based on the fair use factors provided in the Copyright Law at 17 U.S.C. § 107114 (See FAQ Section 2.2.2).
5.2 Use of Government Libraries and Archives
No, there are no special policies that apply to Government libraries and archives. However, under 17 USC § 108115, all libraries and archives are provided special rights with respect to interlibrary loan, archiving and preservation.
"It is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or to distribute such copy or phonorecord, under the conditions specified by this section, if the…
Specific guidelines on photocopying and interlibrary loan are also provided in the CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements,116 and in Copyright Office Circular 21: Reproductions of Copyrighted Works by Educators and Librarians.117
Section 108 of the Copyright Act118 addresses library archiving. The Digital Millennium Copyright Act2 amended Sec. 108 to cover both digital and non-digital copies. It permits the creation of three copies only if the library or archives has, after reasonable effort, determined that an unused replacement cannot be obtained at a reasonable price. These copies may not be distributed to the public outside the premises of the library or archive. The material may also be converted to a new format for preservation of access.
When the anticipated needs for copyrighted material exceed the exceptions granted in § 107119 and §108120, then the agency, library or the patron should seek permission or license agreements. Two approaches to managing these permissions and licenses are to enter into an agreement with the copyright owner directly or to establish an agreement with a copyright clearance center (see FAQ Section 6).
Federal librarians procure published materials in a variety of formats for the use of federal employees and the public. Generally, federal libraries do not own copyrights in the materials in their collection. In the paper environment, libraries usually purchase copies to add to their collections. Copyright law, fair use, and the “first sale” doctrine address the rights and responsibilities of the library as purchaser and of its users. However, in the digital environment, while copyright principles apply, the rights of the library and its users are usually negotiated through contractual agreements and licenses. The terms of these agreements usually allow viewing materials and making reasonable copies for personal or agency use.
Most specifically forbid:
It is important to work with your agency contracting officer and legal advisor in negotiating license agreements for databases, e-books, electronic journals or other subscription products. For further discussion and guidance, see the FEDLINK video presentation Licensing Electronic Publications for Use in a Federal Agency, CENDI's License Agreements for Electronic Products and Services: Frequently Asked Questions, and the National Library of Medicine Policy on Acquiring Copyrighted Material in Electronic Format. Libraries should be proactive in informing and educating users about copyright and information license agreements. For examples, see the Naval Research Laboratory Library Use and Disclaimer Notice and Smithsonian Institution Libraries Permissions: Using Digital Materials from the Smithsonian Institution Libraries.
5.3 Permissions, Licenses, and releases to Use Copyrighted Works
Permission is not needed if the work is in the public domain (see FAQ Section 2.2.4), when the use is a fair use (see FAQ Section 2.2.2), or if a license or agreement covers the intended use. Otherwise, permission should be sought.
Permission is not needed for the use of facts, because Copyright Law does not protect facts. However, to the extent that the facts are presented in tables, chart, graphs, or figures that can be copyrighted, permission may be necessary. Although it is always desirable to give attribution to the source, attribution is not a substitute for permission.
Reasonable rights should be requested, covering the uses for which the work is intended to be utilized and considering potential uses in the future. Copyright owners generally treat permissions as being more informal than licenses. Permissions are usually royalty-free, so the rights requested should be reasonably narrow. However, licenses and releases often require a royalty or one-time payment. In all cases, consideration should be given to platforms/formats, geographical or marketing areas, duration, warranties and indemnities for incorrect information, one-time only or multiple uses, and current version versus revisions.
The wording should be developed with your Office of General Counsel. However, the final product will be only as comprehensive as the information you have provided to the counsel concerning your intended use of the material.
Many publishers have examples of permissions posted. A sample letter requesting permission is available from the University of Texas.121
Yes, these may include the rights of privacy and publicity. For example, a release should be sought in all cases where a person's voice or recognizable image will be included in the Government work. While a release may have been obtained for one purpose, it may not necessarily cover additional uses. If authorization to use a picture or video for government purposes is obtained, use for non-governmental purposes may require additional authorization. For example, if a picture or video is being provided to a commercial firm for commercial use, the original release may not apply. Your General Counsel should review the original release.
The ability to transfer permission depends on the original agreement between the copyright owner and the party to which the permission was originally granted. Permission obtained from a copyright owner is not transferable to a third party, unless expressly stated. If a Government agency has obtained a government-wide permission, it may provide the material to other agencies.
Yes. The Government or any other entity wishing to include copyrighted materials in a publication must seek permission from any copyright owner (See FAQ Section 5.1.1). For limitations on a government employees' right to sue the Government for copyright infringement, see 28 U.S.C. § 1498(b)122.
5.4 Infringement by the Government
Unauthorized use of a copyrighted work is an infringement unless the use is outside the exclusive rights provided by the Copyright Law, or unless the use is covered by one of the limitations on the exclusive right, such as fair use under 17 U.S.C. § 107123, reproduction by libraries or archives under 17 U.S.C. § 108124, or transfer of particular copies or phonorecords (first sale doctrine) under 17 U.S.C. §109125. Once the copyright is registered in the U.S. Copyright Office, the owner of the exclusive rights infringed is entitled to institute an infringement action.
Yes. Title 28 U.S.C. § 1498(b)126 specifies that a copyright owner's exclusive remedy shall be an action against the United States in the U.S. Court of Federal Claims. The suit must be initiated within three years of the act of infringement. The U.S. Government is also liable for infringement by a government contractor if the contractor acted with the authorization or consent of the Government. DOD agencies process administrative claims of copyright infringement in accordance with DFARS Subpart 227.70127.
In accordance with 28 U.S.C. 1498(b)128, the Government's liability is for either the reasonable and entire compensation or the minimum statutory damages. The minimum statutory damages are $750 per infringement. Therefore, neither willful nor innocent infringement is an issue when determining damages for the Government.
The Department of Justice represents the government in court.
COPYRIGHT LEGISLATION AND OTHER RESOURCES ON THE INTERNET
(originally published as Bibliography on Copyright: Education and Fair Use Issues, 12/26/00, used courtesy of Mary Levering, U.S. Copyright Office)
This bibliography lists some recent publications, articles, brochures, websites, and listservs related to copyright educational and library fair use issues that provide information and a variety of perspectives on these issues. This list is not intended to be exhaustive nor does the U.S. Copyright Office necessarily endorse the work listed. Website addresses cited were all correct and active as of August 2004.
Copyrighted Materials and the FOIA, FOIA Update, Vol. IV, No. 4, Fall
1983, OIP Guidance
[In sum, agencies should carefully examine all copyrighted materials encompassed within FOIA requests to determine whether they qualify for Exemption 4 protection. As for those copyrighted materials to which Exemption 4 is inapplicable, the position of the Department of Justice is that the release of such materials under the FOIA is a defensible "fair use."]
Elsevier Author Gateway.
Note: Under Publisher Information, choose Getting Published with Elsevier Science. Under After Acceptance, choose Copyright Information. Elsevier does not post its Copyright Transfer Agreement nor does the information presented on the Author Gateway mention Government or Government-contracted works.
1Berne Convention http://www.copyright.gov/title17/92appii.html
217 USC § 106. http://www.copyright.gov/title17/92chap1.html#106
3Digital Millennium Copyright Act http://www.copyright.gov/legislation/hr2281.pdf
417 USC § 1202(c) http://www.copyright.gov/title17/92chap12.html#1202
517 USC § 107 http://www.copyright.gov/title17/92chap1.html#107
6Federal Acquisition Regulation http://www.arnet.gov/far/
717 USC § 202 http://www.copyright.gov/title17/92chap2.html#202
817 USC § 109 http://www.copyright.gov/title17/92chap1.html#109
9OMB Circular A-130 http://www.whitehouse.gov/omb/circulars/a130/a130.html
10Freedom of Information Act http://www.usdoj.gov/oip/foi-act.htm
11Privacy Act http://www.accessreports.com/statutes/PA.htm
1244 U.S.C. § 1901 http://www.access.gpo.gov/uscode/title44/chapter19_.html
1344 U.S.C. § 3301 http://www.access.gpo.gov/uscode/title44/title44.html
1417 USC § 101, Definitions http://www.copyright.gov/title17/92chap1.html#101
1517 USC § 101, Definitions http://www.copyright.gov/title17/92chap1.html#101
1617 USC § 201(a) http://www.copyright.gov/title17/92chap2.html#201
1717 USC § 101, Definitions http://www.copyright.gov/title17/92chap1.html#101
1817 USC § 201(d) http://www.copyright.gov/title17/92chap2.html#201
1917 USC § 204 http://www.copyright.gov/title17/92chap2.html#204
20Title 17 of the United States Code (17 USC - Copyrights http://www.copyright.gov/title17/92chap2.html#204
21Title 37 Code of Federal Regulations http://www.copyright.gov/title17/92chap2.html#204
22U.S. Constitution, Article 1, Section 8 http://www.archives.gov/exhibit_hall/charters_of_freedom/constitution/constitution.html
23Berne Convention http://www.copyright.gov/title17/92appii.html
24Sonny Bono Copyright Term Extension Act http://www.copyright.gov/legislation/s505.pdf
25Digital Millennium Copyright Act http://www.copyright.gov/legislation/hr2281.pdf
2617 USC § 106. http://www.copyright.gov/title17/92chap1.html#106
2717 USC § 106 A http://www.copyright.gov/title17/92chap1.html#106A
28Circular 101: Copyright Basics http://www.copyright.gov/circs/circ1.html
29Circular 40, Copyright Registration for Works of the Visual Arts
30The U.S. Copyright Law, Chapter 3 -- Duration of Copyright http://www.copyright.gov/title17/92chap3.html
31Information Circular 15a - Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection http://www.copyright.gov/circs/circ15a.pdf
32Fact sheet FL 15 - New Terms for Copyright Protection http://www.copyright.gov/fls/sl15.html
33When Works Pass Into the Public Domain http://www.unc.edu/~unclng/public-d.htm
33aCopyright Term and the Public Domain in the United States http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
3417 USC §§ 107 through 120 http://www.copyright.gov/title17/92chap1.html
3517 USC § 107 http://www.copyright.gov/title17/92chap1.html#107
3617 USC § 107 http://www.copyright.gov/title17/92chap1.html#107
37National Library of Medicine http://www.nlm.nih.gov/disclaimer.html
38U.S. Air Force Museum http://www.wpafb.af.mil/museum/warn.htm
39Library of Congress http://www.loc.gov/homepage/legal.html#COPY
4017 USC § 204 http://www.copyright.gov/title17/92chap2.html#204
41Copyright Office Circular 22 http://www.copyright.gov/circs/circ22.html
42Library of Congress Information System http://www.copyright.gov/records/#locis
43Washington Post http://www.washingtonpost.com/wp-srv/interact/longterm/talk/copy.htm
44New York Times http://www.time.com/time/faq/#link
45Pub. L. No 105-304, 112 Stat. 2860 http://www.copyright.gov/legislation/hr2281.pdf
4617 U.S.C § 1201 et al. http://www.copyright.gov/title17/92chap12.html#1201
4717 U.S.C. § 1201(a)(1) http://www.copyright.gov/title17/92chap12.html#1201
4817 U.S.C. § 1201(a)(1) http://www.copyright.gov/title17/92chap12.html#1201
4917 U.S.C. § 1202 http://www.copyright.gov/title17/92chap12.html#1202
5017 U.S.C. § 512 http://www.copyright.gov/title17/92chap5.html#512
51U.S. Copyright Office Summary of the DMCA. http://www.copyright.gov/legislation/dmca.pdf
54U.S. Patent and Trademark Office http://www.uspto.gov/
5517 USC § 101, Definitions http://www.copyright.gov/title17/92chap1.html#101
56Copyright in Government Employee Authored Works http://stinet.dtic.mil/cgi-bin/fulcrum_main.pl?database=TR_U2&numrecords=25&search.DOC_TEXT=ADA392914
57Public Affairs Associate V. Rickover http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=369&invol=111
5817 USC § 105 http://www.copyright.gov/title17/92chap1.html#105
60Pfeiffer v. Central Intelligence Agency http://www.ll.georgetown.edu/federal/judicial/dc/opinions/94opinions/94-5107a.html"
61OMB Circular A-130 http://www.whitehouse.gov/omb/circulars/a130/a130.html
62Department of Defense Directive 5230.9 http://stinet.dtic.mil/stinfo/data/DoDD_52309.pdf
63DOD Instruction 5230.29 http://www.dtic.mil/whs/directives/corres/pdf/i523029_080699/i523029p.pdf
66NASA Space Act Agreements http://www.hq.nasa.gov/ogc/samanual.html
67Terms and Conditions for the Visible Human Project http://www.nlm.nih.gov/research/visible/getting_data.html
68Unified Medical Language System http://www.nlm.nih.gov/research/umls/license.html
6917 USC § 403 http://www.copyright.gov/title17/92chap4.html#403
70Matthew Bender & Co. v. West Publishing Co. http://www.kentlaw.edu/classes/rwarner/legalaspects_ukraine/copyright/cases/bender_v_west.html
71IEEE Copyright Form http://www.ieee.org/portal/index.jsp?pageID=corp_level1&path=about/documentation/copyright&file=cfrmlink.xml&xsl=generic.xsl
72Kluwer Academic/Plenum Publishing Transfer of Copyright Form http://www.bga.org/journal/Kluwer-Plenum_copyright.pdf
73 17 USC § 101, Definitions http://www.copyright.gov/title17/92chap1.html#101
7417 USC § 201 http://www.copyright.gov/title17/92chap2.html#201
75Federal Acquisition Regulations http://www.arnet.gov/far/
76FAR Subpart 27.4--Rights in Data and Copyrights http://www.arnet.gov/far/current/html/Subpart_27_4.html#999113
77FAR general data rights clause, 52.227-14 http://www.arnet.gov/far/current/html/52_227.html#1109286
78Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 227.4 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_4.htm
79Part 211 http://www.acq.osd.mil/dp/dars/dfars/html/211_0.htm
80DFARS Part 252 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252_1.htm
81 DFARS Part 227.4 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_4.htm
82FAR 27.400 http://www.arnet.gov/far/current/html/Subpart_27_4.html#999113
83DFARS 227.7103-9 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_71.htm#227.7103-9
84DFARS 252.227-7013-4 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7013
85DFARS 252.227-7020 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7020
86FAR 27.227-20 http://www.arnet.gov/far/current/html/52_227.html#1109434
87DFARS 227.7103-9 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_71.htm#227.7103-9
88DFARS 227.7203-9 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_72.htm#227.7203-9
89FAR 52.227-14 http://www.arnet.gov/far/current/html/52_227.html#1109286
90FAR 27.404(f)(2) http://www.arnet.gov/far/current/html/Subpart_27_4.html#999133
91DFARS 227.7103-9(a)(2) http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_71.htm#227.7103-9
92FAR special works data rights clause, 52.227-17 http://www.arnet.gov/far/current/html/52_227.html#1109389
93FAR 27.404(g)(3) http://www.arnet.gov/far/current/html/Subpart_27_4.html#999170
94NASA FAR Supplement http://www.hq.nasa.gov/office/procurement/regs/5227.htm
95DFARS 252.227-7020 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7020
96FAR general data rights clause, 52.227-14 http://www.arnet.gov/far/current/html/52_227.html#1109286
97FAR 27.404(g) http://www.arnet.gov/far/current/html/Subpart_27_4.html#999168
98FAR special works data rights clause, 52.227-14(d) http://www.arnet.gov/far/current/html/52_227.html#1109313
99FAR special works data rights clause http://www.arnet.gov/far/current/html/52_227.html#1109389
100DFARS clause 252.227-7013 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7013
101DFARS clause 252.227-7020 http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7020
102DFARS 227.7106(b) http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/227_71.htm#227.7106
103FAR 27.404(f)(1)(v) http://www.arnet.gov/far/current/html/Subpart_27_4.html#999133
104DFARS clause 252.227-7013(f) http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7013
and 252.227-7014(f) http://www.acq.osd.mil/dp/dars/dfars/html/r20030430/252227.htm#252.227-7014
105OMB Circular A-110 Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations
106OMB Circular A-102, Grants and Cooperative Agreements with State and Local Governments
107Section 36 of Circular A-110 http://www.whitehouse.gov/omb/circulars/a110/a110.html#36
108new requirements for providing government access http://www.whitehouse.gov/omb/fedreg/a110-finalnotice.html
10928 USC § 1498 (b) http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode28&STEMMER=en&WORDS=1498+&COLOUR=Red&STYLE=s&URL=/uscode/28/1498.html#muscat_highlighter_first_match
110John C. Boyle v. United States http://www.ll.georgetown.edu/federal/judicial/fed/opinions/99opinions/99-5125.html
111U.S. Department of Justice opinion http://lcweb.loc.gov/flicc/gc/fairuse.html
112"Application of the Copyright Doctrine of Fair Use to the Reproduction of Copyrighted Material for Intelligence Purposes" http://www.jagcnet.army.mil/TJAGSA
113Copyright Office Circular 1 http://www.copyright.gov/circs/
11417 USC § 107 http://www.copyright.gov/title17/92chap1.html#107
11517 USC § 108 http://www.copyright.gov/title17/92chap1.html#108
116CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements http://www.cni.org/docs/infopols/CONTU.html
117Copyright Office Circular 21 http://www.copyright.gov/circs/circ21.pdf
11817 USC § 108 http://www.copyright.gov/title17/92chap1.html#108
11917 USC § 107 http://www.copyright.gov/title17/92chap1.html#107
12017 USC § 108 http://www.copyright.gov/title17/92chap1.html#108
121sample letter requesting permission http://www.utsystem.edu:80/ogc/intellectualproperty/permmm.htm
12228 USC § 1498 (b) http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode28&STEMMER=en&WORDS=1498+&COLOUR=Red&STYLE=s&URL=/uscode/28/1498.html#muscat_highlighter_first_match
12317 USC § 107 http://www.copyright.gov/title17/92chap1.html#107
12417 USC § 108 http://www.copyright.gov/title17/92chap1.html#108
12517 USC § 109 http://www.copyright.gov/title17/92chap1.html#109
12628 USC § 1498 (b) http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode28&STEMMER=en&WORDS=1498+&COLOUR=Red&STYLE=s&URL=/uscode/28/1498.html#muscat_highlighter_first_match
127DFARS Subpart 227.70 http://www.acq.osd.mil/dp/dars/dfars/html/r20021001/227_70.htm
12828 USC § 1498 (b) http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode28&STEMMER=en&WORDS=1498+&COLOUR=Red&STYLE=s&URL=/uscode/28/1498.html#muscat_highlighter_first_match
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