A work of the United States government, as defined by United States copyright law, is "a work prepared by an officer or employee of the U.S. government as part of that person's official duties."[1] The term only applies to the work of the federal government, including the governments of "non-organized territorial areas" under the jurisdiction of the U.S Government,[2] but not state or local governments. In general, under section 105 of the Copyright Act,[3] such works are not entitled to domestic copyright protection under U.S. law, sometimes referred to as "noncopyright."
The act only applies to U.S. domestic copyright as that is the extent of U.S. federal law. The U.S. government asserts that it can still hold the copyright to those works in other countries.[4] However, the language of the statute implies no geographical restriction on its denial of copyright protection to U.S. government works as it says, "Copyright protection under this title is not available for any work of the United States Government…."[5]
In addition, many publications of the U.S. government contain protectable works authored by others (e.g., patent applications, Securities and Exchange Commission filings, public comments on regulations), and this rule does not necessarily apply to the creative content of those works.
Contents |
Unlike works of the U.S. Government, works produced by contractors under government contracts (or submitted in anticipation of such contracts) are protected and restricted under U.S. copyright law. The holdership of the copyright depends on the terms of the contract and the type of work undertaken. Contract terms and conditions vary between agencies; contracts to NASA and the military may differ significantly from civilian agency contracts.[6]
Civilian agencies and NASA are guided by the Federal Acquisition Regulations (FAR). There are a number of FAR provisions that can affect the ownership of the copyright. FAR Subpart 27.4—Rights in Data and Copyright provides copyright guidance for the civilian agencies and NASA. Additionally, some agencies may have their own FAR Supplements that they follow.
Under the FAR general data rights clause (FAR 52.227-14), the government has unlimited rights in all data first produced in performance of or delivered under a contract, unless the contractor asserts a claim to copyright or the contract provides otherwise. Unless provided otherwise by an Agency FAR Supplement, a contractor may 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, and for "commercial software", the Government typically obtains no better license than would any other customer.
The federal government can hold copyrights that are transferred to it.[3] For example, in 1837, the federal government purchased former U.S. President James Madison's manuscripts from his widow, Dolley Madison, for $30,000;[7] if this is construed as covering copyright as well as the physical papers, it would be an example of such a transfer.[8]
Works by certain independent agencies, corporations and Federal subsidiaries may be exempt from US Government copyright status. For instance, material produced by the United States Postal Service[9] are typically subject to normal copyright. Most USPS materials, artwork and design and all postage stamps as of January 1, 1978 or after are subject to copyright laws. Works of the former United States Post Office Department are in the public domain (due to its former position as a cabinet department).
15 U.S.C. § 290e authorizes U.S. Secretary of Commerce to secure copyright for works produced by the Department of Commerce under the Standard Reference Data Act.[10][11]
The non-copyright rule also does not apply to state or municipal governments, District of Columbia,[12] Puerto Rico,[13] or "organized territories" under the jurisdiction of the U.S. Government.[2]
The United States Copyright Office considers edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents, 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.[14]
Certain works, particularly logos and emblems of government agencies, while not copyrightable, are still protected by other laws similar in effect to trademark laws. Such laws are intended to protect indicators of source or quality. For example, some uses of the Central Intelligence Agency logo, name, and initialism are regulated under the CIA Act of 1949 (50 U.S.C. § 403m).