Copyright Corner

According to the Office of Management and Budget, the United States government “is the largest single producer, collector, consumer and disseminator of information in the United States.”  United States copyright law places works of the U.S. federal government in the public domain in the United States upon creation.

Works in the public domain are not protected by copyright; either copyright has expired or the work was never protected by copyright.  Changes to copyright law have increasingly limited the amount of works entering the public domain in the United States, which increases the importance of U.S. government documents as a source of new public domain materials.

At first glance, 17 U.S.C. §105, the section of the United States Copyright law that places works of the U.S. federal government in the public domain seems straightforward: “Copyright protection under this title is not available for any work of the United States Government”; but, as with many aspects of this law, things are rarely as simple as they seem.

I.   What the law says

17 U.S.C. §105 places “any work of the United States Government” in the public domain.  The law defines “work of the United States Government” in 17 U.S.C. §101 as (1) a work prepared by “an officer or employee of the United States Government” (2) “as part of that person’s official duties.”  A United States government work does not enter the public domain unless it satisfies both parts of this definition.

Section 105 is subject to several additional restrictions. It only applies to United States federal government works – it does not place state, local or foreign government works in the public domain.  And §105 only places U.S. government works into the public domain within the United States. Other countries are subject to their own copyright laws, which may provide copyright protection to United States government works in those countries.  Nor does §105 mean that all U.S. government works are available for use within the United States without restriction.  Even if a work meets the §105 requirements for entering the public domain, other limitations may apply such as an individual’s publicity or privacy rights, trademark limitations, Freedom of Information Act restrictions, or a prohibition against using information the materials to imply a government endorsement.

II.   Exploring the Definition

Even though §105 places many U.S. government works in the public domain, many other U.S. government works do not meet the statutory definition “work of the United States government” and receive copyright protection.  How could a United States government work fail to satisfy this definition?

Not all government works are created by employees or officials of the government.  If someone other than a U.S. government officer or employee, like a contractor, prepared a work for the agency, the work would not enter the public domain under §105.

Another situation where a possible U.S. government work does not enter the public domain under §105 occurs when a U.S. government official or employee prepares a work outside of their official duties.  In that instance, the U.S. government official or employee receives the same copyright protection as anyone else, since §105 only applies to those works prepared by a government officer or employee as part of their official duties.

For example, a U.S. Admiral received copyright protection for a speech he prepared on his own time while employed by the government because “the writing and delivery of the speeches formed no part of Admiral Rickover’s official duties and that the speeches are the Admiral’s private property which he was entitled to copyright” Public Affairs Associates, Inc. v. Rickover, 268 F.Supp. 444, 450 (1967).  Section 105 also does not apply to “personal narratives written by public servants after they leave Government service” Harper & Row Publishers v. Nation Enterprises, 471 U.S. 559, fn. 6 (1985).

III.   Applying the Definition

As a practical matter, it can be difficult to tell whether a United States government work falls within §105 and therefore belongs to the public domain.  Some documents do explicitly indicate whether the contents are in the public domain.  Many do not.

If a document does not indicate whether it is in the public domain, someone wanting to use the document in a way that might implicate copyright must try to make an informed decision about whether or not the document is in the public domain.  The following bullet points provide suggestions on what to look for and things to think about when investigating the copyright status of a U.S. government document.

• Look for a copyright notice on the work. A notice indicates that someone is claiming a copyright in the work, whether the copyright is claimed by the government or a third party.  Section 105 does not prohibit the U.S. government from holding a copyright in the United States.  Although §105 places items created by the government in the public domain, the law also permits the United States government to hold copyrights “transferred to it by assignment, bequest, or otherwise” (17 U.S.C. §105).
• Look for a statement indicating that the work is in the public domain (as seen in the image below), but keep in mind that the government is not required to put a public domain notice on works, and not all works with public domain status under §105 will display a notice.
  

  Center for Substance Abuse Prevention (U.S.), & ICF International (Firm). (2010). Focus on prevention. Rockville, MD: U.S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Substance Abuse Prevention.

• Are the authors identified as employees or staff of the government agency? This may be an indication that the work qualifies as a “work of the United States Government” and belongs to the public domain.
• Look for information indicating that the author(s) was not a government employee or official. For example, works prepared by a contractor, commissioned by the agency from another organization, or created by some other third party. Author affiliations and biographies may provide additional clues.If the document provides the authors’ names, but not their affiliation(s), researching the author(s) may reveal whether they work for the government.
• Contact the government agency and ask for additional information about the document.  Even if they are not able or willing to tell you whether it is in the public domain, they may be able to provide additional information about the creation of the document that will help you determine its status.

IV.   Conclusion

Government information is a valuable national resource.  Section 105 places U.S. government works in the public domain to facilitate use of this important resource.   If users cannot clearly determine that a U.S. government document belongs in the public domain, they may have to treat the work as protected by copyright – which seems contrary to the reason Congress placed such works in the public domain.

Ideally, U.S government agencies would clearly indicate whether a work belongs in the public domain. Historically, this has not been the case; however as more works become available digitally, U.S. government agencies may increasingly provide rights information indicating whether the works fall within the public domain.

Despite the challenges involved in determining the copyright status of some U.S. government works, it is possible to identify many U.S. government works as part of the public domain.  Although it may not be as simple as it should be to identify public domain “work[s] of the United States Government”, the U.S. government remains an important source of public domain material.

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Marc Jaffy is a graduate of the Kent State University School of Library and Information Science and former practicum student at the OSU Libraries Copyright Resources Center