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Complications of the U.S. Public Domain

Here is a useful and informative article about copyright by Peter Hirtle, Senior Policy Advisor at Cornell University Library. It includes a section on “The confusing case of government works.”

Think 1923 is the magic year? Think again! “Probably the oldest work still protected by copyright in the U.S. is a letter from John Adams to Nathan Webb written on Sept. 1, 1755.”

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  1. Bonnie Klein says:

    Life is never as simple as we would like it to be. Peter Hirtle is absolutely correct that printing, publication and distribution of information by the Federal Government is no guarantee that the information is free of copyright (or other) restrictions.

    Definitions matter.

    “Work of the U.S. Government.” The Copyright Law of the United States (17 USC §105) excludes works of the U.S. Government from domestic copyright protection. The definition of a work of the U.S. Government is found in 17 USC §101 which narrows the scope to “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” Note that contractors, grantees, and other Government information suppliers are not included. This definition is easily overlooked because it is not stated in or directly linked to 17 USC §105. However, the two must be considered together for a correct interpretation of the law.

    “Public Domain.” While Government itself frequently characterizes and labels U.S. Government Works as “public domain,” it is a misnomer to equate the two. In comparing their attributes, the aspect they share in common is that they are free of copyright restrictions in the United States (defined in Title 17 USC §101 as the “States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government”).

    Unlike works in the public domain, U.S. Government works may be subject to other legal restrictions governing their use at home and abroad. For example, privacy and publicity rights protect the interests of the person who may be the subject of the work. Another consideration is 18 USC §709 which prohibits the intentional unauthorized use of US Government emblems, insignia, names and trademarks to create a misleading impression of affiliation or endorsement by the Federal Government.

    There are valid considerations and reasons behind the policies that shape the law. We need to look to the legislative history to understand the issues and to dispell the myths and misconceptions.

  2. jrjacobs says:

    Thanks for the .gov copyright reminder Bonnie. I think we also need to remember that copyright is a social construct out of the 1700s (remember the [w:Statute of Anne] ?). Thus, it can be changed as well.

    Govt information librarians and the govt transparency community are in a good spot to both remind people about the intricacies of copyright and .gov public domain (I’m asked this question all the time by academics at my institution!) AND advocate for more flexibility and change in how the US government deals with its own public domain content to make sure that govt content stays in the public domain where it belongs. So when a .gov site like change.gov has a copyright statement placed on it, we need to be there to remind the Web designers and agency staff about the public domain. And we need to be ready to push the boundaries of 17 USC §101 to fit with the information norms of the 21st century. For example, we should be advocating that copyrighted material submitted for Congressional hearings be officially part of the hearing transcript and therefore in the public domain. In other words, we should be pushing the envelope and advocating for what the public CAN do with .gov information (the vast amount of which IS in the public domain!), not finding ways to dissuade or restrict the public from using .gov information.

    (Personally, I’d be very happy w ALL govt information — state govts too!! — being under a creative commons share alike/attribution/non-commercial license. Grok that :-)).

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