Government InformationCopy Rights for Content Use, Repurposing and Preservation

Government InformationCopy Rights for Content Use, Repurposing and Preservation

Bonnie KleinProgram Manager for Copyrighted Information

Defense Technical Information Center

bklein@dtic.mil/ 703-767-8037

Approved for Public ReleaseU.S.Government Work (17 USC §105)

Not copyrighted in the U.S.

Defense Technical Information Center

Disclaimer

• The views expressed are those of the author and not those of the U.S. Department of Defense or the U.S. Government.

• The information presented here is not to be construed as legal advice.

• The Copyright Law is complex and situation-based. For your specific questions, consult your legal counsel for opinion.

Department of Energy

Defense Technical Information Center

Environmental Protection Agency

National Aeronautics and Space Agency

National Archives and Records Administration

National Library of Agriculture

National Library of Education

National Library of Medicine

National Technical Information Service

US Geological Survey/ Biological Resources Division

US Government Printing Office

CENDI Copyright FAQhttp://www.dtic.mil/cendi/publications/00-3copyright.html

Content use, repurposing & preservation

What about copyright permissions?

• A staged approach...providing free-to-read access to multiple collections.

– U.S. works that aren't copyrighted, likeU.S. government documents.

– U.S. out of copyright works

– U.S. copyrighted worksCopyrighted works will be digitized upon receipt of permission from the copyright holder to include the works in the Million Book Project.

U.S. Government Documents& Copyright

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

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

Copyright Basics Use analysis

• The law places the burden on the user to– investigate the copyright status of a work

and– determine if their use is beyond the

exceptions provided in the law or authorized under license or permissions.

• 1790 Copyright Act (1st)

• 1909 Copyright Act (3rd revision)

• 1972 Sound recordings protected • 1976 Copyright Act (4th revision)• 1989 Berne Implementation Act• 1994 U.S. GATT Implementation/Uruguay Round

Agreements Act• 1998 Sonny Bono Copyright Term Extension Act • 1998 Digital Copyright Millenium Copyright Act

Copyright BasicsUS Copyright Law Evolution

Copyright Basics

Copyright Basics: What is protected

• Protection provided by law to the authors of “original works of authorship”

• e.g. , Text, images, recordings, photographs, films, software

• Minimum amount of creativity• Covers published and unpublished works• Automatic; no registration or notice required since 1989

• Expression only; not ideas, facts, processes

• “Fixed” in a tangible medium• Now known or later developed from which they can be

perceived...either directly or with the aid of a machine or

device.

Copyright Basics: Definition

Copyright Basics: What is not protected

Copyright Basics: Exclusive Rights

Reproduce

Distribute

Adapt

Perform

Display

Copyright Basics: Duration of Copyright

• Created on or after 1 Jan 1978:– life of author (the X factor) plus 70 years

– work-made-for-hire 95 years from publication or 120 years from creation

• Published 1 Jan 1964 thru 31 Dec 1977:– 28 years from date of publication, plus renewal term of 47 years if renewal

application filed. After 1992, renewal term of 47 years is automatic, and if a renewal application is filed, there are added benefits for the copyright owner

• Published prior to 1 Jan 1964:– 28 years from date of publication, plus renewal term of 47 years if renewal

application filed

• All works published before 1923 are in the public domain

Copyright BasicsCopyright Duration for Published Works

§ 108(h) Reproduction by libraries and archivesLast 20 years of copyright of a published work

• May reproduce, distribute, display, or perform in facsimile or digital form a copy or portions…even display on the Web.

• For preservation, scholarship, or research

• Based on reasonable investigation that • the work is not subject to normal commercial exploitation• a copy or phonorecord of the work cannot be obtained at

a reasonable price• the copyright owner or its agent has not provided notice to

the Register of Copyrights of the first two conditions

• The exemption does not apply to any subsequent uses by users other than library or archives.

• Works in the public domain• U.S. Government works• Exemptions and limitations on exclusive

rights in §107 - §121– § 107 Fair Uses– § 108 Reproduction by libraries and archives– § 109 First Sale

– § 110 Educational performances and displays

Copyright BasicsNo Grant of Rights or Permissions Needed

• Publicly available.• Not owned or protected by copyright.• May be used by anyone, anywhere, anytime

without permission, license or royalty payment.

Public domain and public release are not synonymous!

Copyright BasicsPublic Domain

• Works on which the author never claimed copyright

• Works on which the term of copyright has expired

• Works for which the author forfeited copyright by failure to comply with statutory formalities pre-1989; e.g., no or defective notice.

• Official works of the U.S. Government

Copyright BasicsPublic Domain

Government Information

• Myth: Information published by or sponsored by the U.S. Government is in the public domain

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

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

Government Information

Public release does not equal public domain • Government Info

– Definition• OMB-A130• Title 44 USC §1901• Broad scope

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

commercial copyright• Assignment

• Government Works– Definition:

• Title 17 USC §101, § 105

• Narrow scope

– Not copyrighted• Public domain in U.S.

Government Information

• Government Information assets OMB Circular A-130 Management of Federal Information Resourceshttp://www.whitehouse.gov/omb/circulars/a130/a130trans4.html– created by the organization (employees)– created for the organization (contractors & grantees)

– for which the organization has stewardship

• Records managementNational Archives and Records Administration http://www.nara.gov– guards the legal and financial rights of the government and

citizens– preserves records of archival value for future generations

Government Records (44 USC §3301)

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

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

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

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

Government InformationPrimary vs. Secondary Distribution

• Primary by originating office

– Publish– Determine initial distribution– Store– Provide to interested parties

• Secondary by information centers

– Store– Announce– Distribute– Reference Service

Government InformationSources

• Federal agencies

• Government Printing Office

• National Technical Information Service

• Private sector

Government Copyright Notice

Copyrightedworks

Government Copyright NoticeAffirmative Disclosure

• Library of Congress: Digital Preservation. Digital Reproductions: Copyright and Other Restrictions http://www.loc.gov/preserv/digital/dp-copyright.html

• National Archives and Records Administration Copyright, Restrictions, and Permissions Noticehttp://www.archives.gov/global_pages/privacy_and_use.html#copyright

• Defense Technical Information Centerhttp://www.dtic.mil/dtic/privacy.html#copyright

• National Library of Medicine. Medline Plushttp://www.nlm.nih.gov/medlineplus/copyright.html

Government Web Site Search DefenseLink.mil

Keyword “Copyright” = 17164 hits

DTIC Copyright Guidelineshttp://www.dtic.mil/dtic/submitting/copyright.html

Copyright BasicsGovernment Works

Government WorksElement of uncertainty

• Government practice is not to provide notice for Government Works– Unless otherwise stated (in absence of a notice)

users may assume the information is not copyrighted.

• Contradicts US Copyright Law– Pre-Berne 1989 :

No notice default -- assume not copyrighted.– Post-Berne 1989:

No notice -- assume copyrighted

Government Work Embedded copyrighted material

Military Dermatology - Textbook of Military Medicine Chapter 1, p.9

http://www.vnh.org/MilitaryDerm/Ch1.pdf

• What rights attach depends on:– Assignment (all rights transferred) vs. license (a

transfer of less than complete ownership)e.g. to prepare a musical recording you may need:public performance rights, sound recording rights, synchronization rights, mechanical rights

– Platforms/formats– Geographic territories– Duration– 1-time only, multiple uses, revisions

Government WorkEmbedded copyrighted material

• Prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. (17 USC §101)

• Authors are co-owners of the copyright in the work, unless there is an agreement to the contrary. (17 USC §201.)

• Unsettled question of rights– Copyrighted or public domain?– Agency policy

Government Joint Workby Government and non-Government authors

Government WorkPublished by the private sector

• CENDI FAQ 3.2.1: May another publisher or individual republish a U.S. Government work and assert copyright?

• 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 § 403 regarding copyright notice requirements for works incorporating U.S. Government works.)

Government WorkPublished by the private sector

• CENDI FAQ 3.2.3 May the Government reproduce and disseminate U.S. Government works, such as journal articles or conference papers, which have been first published or disseminated by the private sector?

• 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.,68 158 F.3d 674 (2d Cir. 1998), cert. denied, 119 S. Ct. 2039 (1999)).

Government WorkPublished by the private sector in compilation

• U.S. Government works are not protected by copyright in the U.S.

• Other works in the compilation may be copyrighted

• The creative aspect of the compilation or the whole, e.g., selection, coordination or arrangement, may be protected by copyright

Identifying Government WorksPublished by the private sector

• Author Biographical Information usually found at

the bottom of either the first or last page • Organization/Agency Affiliation usually found after

or below the author's name. Sometimes found in biographical note

• Copyright Notice usually found at the bottom of the

first page (generally in very small print)

Identifying Government WorksSample Statements

– U.S. Government Work (17 USC § 105).Not copyrighted in the U.S.

– This is a work of the U.S. Government and is not subject to copyright protection in the U.S. Foreign copyrights may apply.

– This work was prepared by a U.S. Government employee and, therefore, is excluded from copyright by Section 105 of the Copyright Act of 1976.

Authors and Owners of Government Information

• The true size of government is growing;the federal civil service is not the source of growth.

• 1990: 40% federal; 60% contractors/grantees• 2002: 33% federal; 67% contractors/grantees

– *Fact Sheet on the New True Size of Government by Paul C. Light, Brookings Institution, Nov 03. http://www.brookings.edu/gs/cps/light20030905.htm

• Contractor normally owns the copyrightGenerally contractors own copyrights in works produced under contract and grant the government a license. The type of license determines what the government may do with the work.

• Data Rights clauses – Federal Acquisitions Regulation (FAR)– Defense Federal Acquisitions Regulation

Supplement (DFARS)•

Government Contracted Works

Government Contracted WorksData Rights Definitions

http://www.acq.osd.mil/dpap/Docs/intelprop.pdf

Intellectual Property: Navigating ThroughCommercial Waters,

Issues & Solutions When NegotiatingIntellectual Property With Commercial Companies.

Updated October 2001

Government Contracted WorksData rights matrix

Government Contracted WorksTypes of Data Rights

• Assignment (Special Works)• Unlimited • Government Purpose• Federal Purpose (Grants)• Limited• Restricted• Specifically Negotiated• SBIR (Small Business Innovation Research)• Commercial

Government Contracted WorksAssignment - Agency owns copyright

May not bereproduced except with

express written consent

Owned by the US Army

Government Contracted WorksAssignment - Agency owns copyright

Copyrightwarning

• Includes the right to distribute to the public– U.S. Government contract work 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 the work to reproduce, prepare derivative works, and perform publicly and display publicly by or on behalf of the Government.All other rights reserved by the copyright owner.

• Generally government rights do not transfer to the public

Government Contracted WorksUnlimited Rights

Government Contracted WorksCan a contractor include preexisting copyrighted

material?

• Must identify copyrighted material and obtain permission from the Contracting Officer to include in a deliverable.

• Provide a license to the copyrighted material equivalent to the license in the contract.

• FAR 27.404(f)(2)91 & DFARS 227.7103-9(a)(2)92

Government Contracted Works Is a contractor copyright notice required?

• Federal Acquisitions Regulation (FAR)• Copyright Notice required• Unlimited Rights if omitted

• Defense Federal Acquisitions Regulation (DFARS)

• Optional• Notice permitted

Government Contractors & Programs

• Federally Funded Research and Development Centershttp://www.nsf.gov/sbe/srs/nsf04309/start.htm– Sandia National Laboratory (Lockheed Martin)

– Argonne National Laboratory (U of Chicago)

– Los Alamos National Laboratory (U of California)

– Project Air Force (Rand)

– National Cancer Institute (SAIC, etc.)

• Department of Defense Information Analysis Centershttp://iac.dtic.mil/framesets/about_2.htm

Government Contracted WorksGovernment Contracted WorksGovernment Rights Notice

Governmentlicense

Others

Copyrightnotice

Government Contract WorksGovernment Rights Notice

Governmentlicense

Everyone else

Government Contract WorksOther uses

In some cases,some rights reserved

Government Grant Works

Grantee owns copyrightGovernment has Federal purpose rights

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

Guidance -- OMB Circular A-110 for Nonprofits -- OMB Circular A-102 for State & Local

Governments

Government Contracted/Grant Works Published in compilations

• Government has prior rights license to use for government purposes.

• CENDI FAQ 4.3 : 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.

Government Rights in Gifts and Exchanges

• Government may have Government purpose rights in accordance with agreements and may reproduce and distribute the work as specified.

• DTIC examples of these include works published by:

• National Defense Industrial Association

• NATO Research Technology Organization

• United Kingdom. Defence Science and Technology Laboratory (DSTL)

• Australia. Defence Science and Technology Organization (DSTO)

Interagency Committee on Government Information (ICGI)

http://www.cio.gov/documents/ICGI.html

• Created June 2003 to implement Section 207 of EGovernment Act Public Law 107-347, 44 U.S.C. Ch 36.

• Goal is to make it easier for all Americans to find and use the government information and services they need.

– Access to federal government information

– Dissemination of federal government information

– Retention of federal government information.

• Working Groups

– Categorization of Government Information

– Electronic Records Policy

– Web Content Management

Not all government information is public domainUse analysis required

• Determine author and owner

• No permission required for government works

• Seek permissions from government contractors, grantees and licensors.

COPY RIGHT COPY RIGHT !!

It DependsIt DependsCase by case

Situation Specific

Seek advice

Familiarize yourself withFamiliarize yourself withCopyright basics

Agency policy

Your legal counsel

Guides & References

• US Copyright Officehttp://www.loc.gov/copyright CENDI Frequently Asked

• CENDI Frequently Asked Questions About Copyright http://www.dtic.mil/cendi/publications/00-3copyright.html

• DTIC ® Guidelines for Determining Copy Rights http://www.dtic.mil/dtic/submitting/copyright.html

• When Works Pass Into the Public Domain by Laura Gasaway www.unc.edu/~unclng/public-d.htm

Guides & References

• University of Texas System Crash Course in Copyright http://www.utsystem.edu:80/ogc/intellectualproperty/cprtindx.htm

• Copyright Issues Relevant to the Creation of a Digital Archive: A Preliminary Assessment Commissioned for and sponsored by the National Digital Information Infrastructure and Preservation Program,

Library of Congress by June M.Besek http://www.clir.org/pubs/reports/pub112/contents.html

• Library Digitization Projects and Copyright by Mary Minow http://www.llrx.com/features/digitization.htm

• SPARC Institutional Repository Checklist & Resource Guide http://www.arl.org/sparc/IR/IR_Guide.html