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US government sends itself a takedown notice

As you may know, works of the U.S. Government are not protected by copyright in the U.S. (17 USC §105), but we often discover copyrighted government publications that one would reasonably think would be in the public domain and, more recently, we see works that were treated as public domain in print suddenly being treated as copyrighted when they are converted to digital. No matter how clear the law is, this can lead to confusing situations. Take the case of a movie produced by the United States Information Agency. USIA was was prohibited by law from distributing films in the United States, but a Congressional Resolution did authorize USIA to sell six master copies of the film to the John F. Kennedy Center for the Performing Arts. Then Carl Malamud obtained a copy of a video tape of the movie from NTIS, digitized it, and posted it at the Internet Archive. Now the Kennedy Center is claiming that the film is copyrighted and that the Center has exclusive rights for distribution and NTIS has requested that Malamud take down the digital copy he created.

The Resolution (Congressional Record, August 26, 1965, p.21256) says:

Accordingly, the United States Information Agency is authorized to make appropriate arrangements to transfer to the trustees of the John F. Kennedy Center for the Performing Arts six master copies of such film and the exclusive rights to distribute copies thereof, through educational and commercial media, for viewing within the United States. The net proceeds resulting from any such distribution shall be covered into the Treasury for the benefit of the John F. Kennedy Center for the Performing Arts.

The film begins with a notice (at 00:00:25) that says the film “is presented in the United States by the John F. Kennedy Center for the Performing Arts, Washington DC, in accordance with a resolution of the Congress.” It ends (at 1:26:08) with what looks like a copyright notice (it is hard to read in the digital version) that (I think) says “Copyright 1964 by the National Center for the Performing Arts, All rights reserved.” I assume that these were added by the Center to the original film.

What will Malamud do? He asks you to advise him:

One agency of the federal government has issued a takedown notice to another agency of the federal government, which in turn demanded that we remove a film from the Internet. Not knowing what to do, I have appealed for your help.

I hereby bring this plea before the Court of Appeals for Wonderful Things, appealing to a jury of my peers, all happy mutants, for their verdict.

Read the complete story here:

And watch the movie while you can:

  • John F. Kennedy: Years of Lightning/Day of Drums (1964), United States Information Service, AVA11312VNB1, 1964. (Run time: 1h 26′ 18″)

    The program dramatizes the thousand days of John F. Kennedy’s presidency, from his inauguration in 1961 to his tragic death on November 22, 1963. The videotape emphasizes Kennedy’s and America’s hopes for his term as president. Uploaded by Public.Resource.Org under Joint Venture NTIS-1832 with the National Technical Information Service.

CC BY-NC-SA 4.0 This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.


3 Comments

  1. More often than not, things are never as simple as we would like them to be. A work is not a “Government Work” for purposes of copyright by mere virtue of its printing, publication and distribution by the Government. A Government work may include preexisting copyrighted material used with permission; its incorporation into the government work does not nullify the copyright. Unfortunately, Government agencies either give no notice about the copyright status of their products or advise that in the absence of a copyright notice, users may assume the information is not protected by copyright. Without an affirmative notice from the originating agency, the uncertainty and confusion about copyrights in federal government information often leads to unnecessary restrictions on Government Works or innocent infringement of non-Government works. In all cases, the burden of copyright compliance is passed to the user who may not fully understand the nuances of copyright law.

    Take a look at the National Library of Medicine “Patron Guide to Copyright and Historical Materials” http://www.nlm.nih.gov/hmd/copyright/assessrisk.html

    • Bonnie,

      Thanks for you comment. As always, you do an excellent job of explaining the specific complexities of copyright and government information. I particularly like your point that government agencies too often give no notice about copyright and that leaves the burden of compliance on users. It would, I think, be much better if government agencies were more thoughtful and careful about declaring truly public domain works as public domain. Instead it seems more common that the only time an agency takes the time to explicitly give notice is when it restricts access. That leaves us with confusing cases where the status is unclear and there is a potential for someone to insist that copyright should be applied after the fact, even if that was not the original status or intent — even when it does not serve the public interest.

      The current case is an interesting one because Congress very clearly stated its intent that “the people of the United States should not be denied an opportunity to view the film” [emphasis added] and that the film should be available “through educational and commercial media.” It also allows any proceeds that the Center collects from distribution of the film to be used “in carrying out the purpose of the act authorizing the Center.” Further, a letter from Chairman Roger L. Stevens, of the John F. Kennedy Center for the Performing Arts, is reproduced in the Congressional Record and says that the Center “will make this film available to educational organizations within the United States without profit to the Center.” The Center apparently thought the best way to do this fifty years ago was to apply Copyright to the film and it (again apparently) did so.

      Which brings us to the 21st Century where the Center now has new tools and new options to make the film available to the people of the United States — as the law intended it to do. Note that neither the law nor the report on the law required the Center to copyright the film or earn money from the distribution of the film or restrict access to the film.

      But the Center has chosen to restrict access to the film. Arguably, the Center is denying the public an opportunity to view the film — the opposite of the explicit intent of the law! Is this the right thing to do? Or is it just something that the Center can do legally? I would think that a lawyer certainly could argue that, because the Center was given “exclusive” right to distribute the film, it can legally restrict distribution, but wouldn’t it be difficult to argue that the intent of the law was to use that exclusivity clause to restrict access fifty years later?

      It seems to us at FGI that the government should, whenever it can, act in ways that make the information that it creates or gathers available as freely as possible and that it should refrain from acting like a business that must restrict access to information in order to squeeze every possible cent of profit out of every use of information. In the long run, we believe, the country gets more value by free access to information than the government could ever accumulate by charging for information.

      We think the case of the USIA film and the Kennedy Center, which is rather complex from a copyright-law perspective or from a legal perspective, should be viewed as a simple and clear opportunity for basing decisions on what is the right thing to do. The very complexity of the case opens up the possibility of arguing for more open access and arguing against more restrictions. It is, of course, possible to take a different view of the matter and ask “Does the law allow the Center to restrict access to the film?” But who will benefit from asking that question?

      We believe that government information specialists have an opportunity and even a professional responsibility to push the boundaries of information access. There are plenty of private corporations and lawyers and others who will gladly take on the role of looking for the most narrow legal reasons for how information access can be restricted. They do not need our help. We need to be on the other side of policy creation, arguing access should be more open. Copyright shouldn’t be viewed as an end in itself, but as a means to achieve an end.

  2. […] As you may know, works of the U.S. Government are not protected by copyright in the U.S. (17 USC §105), but we often discover copyrighted government publications that one would reasonably think would be in the public domain and, more recently, we see works that were treated as public domain in print suddenly being treated as copyrighted when they are converted to digital. No matter how clear the law is, this can lead to confusing situations. http://freegovinfo.info/node/3920 […]

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