Government Information Copy Rights for Content Use, Repurposing and Preservation Government Information Copy Rights for Content Use, Repurposing and Preservation Bonnie Klein Program Manager for Copyrighted Information Defense Technical Information Center Approved for Public Release U.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 FAQ

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, like U.S. government documents. –U.S. out of copyright works –U.S. copyrighted works Copyrighted 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 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 Basics US 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 Basics Copyright Duration for Published Works

§ 108(h) Reproduction by libraries and archives Last 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 Basics No 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 Basics Public 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 Basics Public 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,

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 Resources –created by the organization (employees) –created for the organization (contractors & grantees) –for which the organization has stewardship Records management National Archives and Records Administration –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 Information Primary 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 Information Sources Federal agencies Government Printing Office National Technical Information Service Private sector

Government Copyright Notice Copyrighted works

Government Copyright Notice Affirmative Disclosure Library of Congress: Digital Preservation. Digital Reproductions: Copyright and Other Restrictions National Archives and Records Administration Copyright, Restrictions, and Permissions Notice ht Defense Technical Information Center National Library of Medicine. Medline Plus

Government Web Site Search DefenseLink.mil Keyword “Copyright” = hits

DTIC Copyright Guidelines

Copyright Basics Government Works

Government Works Element 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

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 Work Embedded 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 Work by Government and non-Government authors

Government Work Published 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 Work Published by the private sector CENDI FAQ 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., F.3d 674 (2d Cir. 1998), cert. denied, 119 S. Ct (1999)).

Government Work Published 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 Works Published 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 Works Sample 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.

Contractor normally owns the copyright Generally 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 Works Data Rights Definitions Intellectual Property: Navigating Through Commercial Waters, Issues & Solutions When Negotiating Intellectual Property With Commercial Companies. Updated October 2001

Government Contracted Works Data rights matrix

Government Contracted Works Types of Data Rights Assignment (Special Works) Unlimited Government Purpose Federal Purpose (Grants) Limited Restricted Specifically Negotiated SBIR (Small Business Innovation Research) Commercial

Government Contracted Works Assignment - Agency owns copyright May not be reproduced except with express written consent Owned by the US Army

Government Contracted Works Assignment - Agency owns copyright Copyright warning

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 Works Unlimited Rights

Government Contracted Works Can 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 (f)(2)91 & DFARS (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 Centers –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 Centers

Government Contracted Works Government Contracted Works Government Rights Notice Government license Others Copyright notice

Government Contract Works Government Rights Notice Government license Everyone else

Government Contract Works Other uses In some cases, some rights reserved

Government Grant Works Grantee owns copyright Government 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) Created June 2003 to implement Section 207 of EGovernment Act Public Law , 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 domain Use analysis required Determine author and owner No permission required for government works Seek permissions from government contractors, grantees and licensors.

COPY RIGHT ! It Depends Case by case Situation Specific Seek advice Familiarize yourself with Copyright basics Agency policy Your legal counsel

Guides & References US Copyright Office CENDI Frequently Asked CENDI Frequently Asked Questions About Copyright DTIC ® Guidelines for Determining Copy Rights When Works Pass Into the Public Domain by Laura Gasaway

Guides & References University of Texas System Crash Course in Copyright 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 Library Digitization Projects and Copyright by Mary Minow SPARC Institutional Repository Checklist & Resource Guide