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Re: Concerns about works created by the US government

On Wednesday 06 April 2005 07:55 am, Sami Liedes wrote:
> The relevant US law says (title 17, chapter 1, § 105):
>    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 certainly seems to make the works effectively PD in the US;
> however it almost seems as if that was carefully worded to _not_ place
> works in the PD, only to make the US government unable to enforce
> their copyright under the US law.

The language regarding the US holding a transferred copyright is only 
applicable when the copyright is created by a non-governmental actor and then 
transferred to the United States government.  Under those conditions the US 
holds a valid, enforceable copyright that it can do whatever it wants with.  
Probably useful for when the government takes over the assets of a company 
that has defaulted on its taxes (there is a great case where the U.S. 
Government ran a brothel in Las Vegas when it failed to pay its taxes).

> What I think it does NOT do is forbid the US government from enforcing
> their copyright in any foreign jurisdiction. I think this is just
> about the only imaginable reason why the title does not say "Any work
> of the US government is public domain" instead.

Well, now that's a very interesting argument.  It is those foreign 
jurisdictions that are granting the copyright and unless those jurisdictions 
say that national governments cannot claim a copyright, the U.S. certain has 
one in those countries.  The law, as you rightly point out, only denies 
protection under the particular Title...  not all copyright statutes.  A U.S. 
law saying that the executive is not to enforce a right granted by another 
country would be sort of strange, separation of powers wise...  but 
conceivably the only way to ensure the U.S. doesn't enforce those rights.  
All that being said, you are quite corrent that the purpose of the 
prohibition is to ensure that U.S. Citizens have free access to government 
works.  Free foreign access to those works is entirely coincidental and 
probably not part of the policy argument for the statute.

On a related note...  I keep hearing the public domain as this positive state 
where people put their works.  This is not the case under U.S. law, and I 
would venture to guess it is the same elsewhere.  Public Domain is a negative 
state that only exists where there is an absence of a positive copyright.  
One does not put their rights in the public domain, one waves their 
copyright.  You're not going to find language that says, authors doing X put 
their works in the public domain...  rather, its going to be phrase, you only 
have a copyright if you do X, or you will lose your copyright if you fail to 
do Y.  Its an important semantic difference that is useful when you are 
trying to decipher the law. 

> I think that for an international project this might be a problem, at
> least in theory. I agree that the Debian project possibly cannot take
> into account all laws in all countries; however I think this is
> potentially a major issue since it probably would affect any other
> country under the Berne convention.

Yeah, I agree.  If you don't have a license from the U.S. Government saying 
you can use this work in a foreign country, I would stay away from it if you 
want to keep legit... this goes for both close and open source projects.

But as a practical matter, I don't believe the U.S. Government really create 
all that much copyrightable work these days.  Its far more common that it 
gives cash to a group with the right to a license to that work.  But that's 
just my impression and I have no facts to back up the claim :)


Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]

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