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3.6) Can the government copyright its works?




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This article is from the Copyright Law FAQ, by Terry Carroll with numerous contributions by others.

3.6) Can the government copyright its works?

This one has to be taken slowly, and we'll look at federal and state
governments separately, because the rules are different.

With one exception, works of the United States government are public
domain. 17 U.S.C. 105. The only exception is for standard reference
data produced by the U.S. Secretary of Commerce under the Standard
Reference Data Act, 15 U.S.C. 290e.

However, there's a big loophole here: while the U.S government can't get
copyright for its own works, it can have an existing copyright assigned
to it. So if the U.S. government produces a work, it's not copyrighted.
But if an independent contractor working for the government produces a
work, it is copyrighted, and nothing prevents that contractor from
assigning the copyright back to the government. This reconciles the fact
that the U.S. government can't copyright its works with the fact that if
you stay up late on weekends, you'll see Public Service Announcements
against drunk driving that say "Copyright U.S. Department of
Transportation."

Also, there are some entities that might seem to be part of the U.S.
government, but are not. For example, the U.S. Postal Service is no
longer a branch of the U.S. government. In addition, while under U.S.
control, the District of Columbia, Puerto Rico, and organized territories
of the U.S. are not considered to be part of the U.S. government for
purposes of copyright law.

Whether a state can copyright its works is a different matter. Unlike
the U.S. government, a state government's works are subject to copyright.
It is up to each state to decide whether to retain the copyright or
whether such works are to be automatically made public domain.

A related question that sometimes comes up is whether a government may
copyright its laws. In the case of the federal government, because of
the factors discussed above, the answer is clearly that it cannot. With
state governments, it's a little less clear. There is no statute, case,
or regulation that indicates that a state cannot copyright its laws.
However, it is the position of the U.S. Copyright Office that a state's
laws may not be copyrighted. The Compendium of Copyright Office
Practices (Compendium II) section 206.01 states, "Edicts of government,
such as judicial opinions, administrative rulings, legislative
enactments, public ordinances, and similar official legal documents are
not copyrightable for reasons of public policy. This applies to such
works whether they are Federal, State, or local as well as to those of
foreign governments."

Now, the Compendium II does not have force of law. But this does
indicate that any state trying to register a copyright in its laws would
be refused registration by the Copyright Office. As a result, it would
either have to successfully sue the Office to force registration, or it
would bear the burden of establishing that its work was indeed
copyrighted in the event of an infringement suit (normally, a
registration fulfills that burden). It's a safe bet that any state or
city trying to assert a copyright in its laws would have an uphill battle
ahead of it.

 

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