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House Bill Would Allow Copyright Protection for Some Government Works

ARL reports that House of Representatives Bill 5704 “would amend title 10 of the US Code (Armed Forces) to allow faculty members at Department of Defense service academies and schools of professional military education to secure copyrights for certain scholarly works that they produce as part of their official duties…. Currently, there is no copyright protection for government works (with a few exceptions) including those prepared by an officer or employee of the US Government as part of that person’s official duties.”

It is not clear why this is necessary or useful, but even more surprising is this provision of the bill that the author shall (not “may”) transfer the copyright to the publisher:

Upon acceptance for publication of a work for which copyright protection exists by reason of subsection (a), the person holding the copyright shall transfer the copyright to the owner or publisher of the medium in which the work will be published.

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


  1. I think the remainder of that first sentence in the quote may hold the answer to “why this is necessary or useful”:

    “…in order to submit such works for publication, and for other purposes.”

    Another step in the march towards all things privatized. I’m sure this would be ACTA-compatible as well.

  2. I think janczyn has it right that the usefulness of this has to do with publication in journals. In my impression, the vast majority of academic journals require authors to transfer the copyright of the article to the journal as a term of publication. That protects the journal from their articles being published elsewhere, and it is an important part of academic journals staying financially sustainable (although this is slowly changing).

    I think it makes sense then that if the military is going to have faculty at all, that they have the latitude to participate in the academic world through publishing in journals without having to worry about whether (not having) copyright gets in their way.

  3. Thanks Josh and George,

    I agree with you both that this is probably the argument used to justify this change in the law.

    What I find odd is that this move comes at a time when we are taking steps forward toward open access and this bill seems like a big step backward toward corporate control of public information.

    Given that we have a long history of explicitly requiring this body of knowledge to be in the public domain, that there is a strong movement to insist on open access, and that other laws and regulations are beginning to require open access, it seems wrong to write a new law to require transfer of copyright to publishers.

    Consider, too that publishers are finally accommodating open access in a number of ways.

    I have to ask who benefits from this change in the law? Only the publishers can benefit. Not the public and not authors and not the open access movement.

    This law is erecting a new obstacle to open access just when we are slowly, systematically tearing down the old paper-based obstacles.

  4. This is theft from the public domain, pure and simple. Publishers should be willing to accept non-exclusive rights from these authors, or these faculty should lead the way in publishing in open access journals.

    This bill transfers the products of taxpayer funds to private individuals by raiding the public domain.

    if you agree with and live in the district of Rep
    Platts, Todd Russell [PA-19] (Primary Sponsor) or those of , Rep McKeon, Howard P. “Buck” [CA-25] – 7/1/2010, Rep Skelton, Ike [MO-4]- 7/1/2010,Rep
    Snyder, Vic [AR-2]- 7/1/2010, or Rep Wittman, Robert J. [VA-1] 7/1/2010, call or e-mail them to tell them this theft of public domain from the taxpayers is not acceptable.

    "And besides all that, what we need is a decentralized, distributed system of depositing electronic files to local libraries willing to host them." — Daniel Cornwall, tipping his hat to Cato the Elder for the original quote.

  5. This proposal is based on flawed arguments:

    (1) In order to have a work published in a refereed journal, the author must transfer a copyright to the publisher.

    The practice of transferring author copyright to publishers is a publishing industry business model that is eroding with the evolution of scholarly communication in a Web 2.0 social network environment, the movement of academic authors to retain their copyrights and the acceptance and world-wide adoption of Creative Commons licenses.

    Additionally, the fact that an author is a government employee whose work is not subject to copyright does not seem to be an impediment to publication in refereed journals. Most publishing agreements have a section especially for government employees to sign and give notice of their status. While publishers do not own the copyright in the material supplied by the government author, they may claim copyright in orginal material they add such as an abstract, graphic or image and in the final published version if it includes such elements.

    (2) that the only authors affected are in the academic community.

    What if an instructor at the National Defense University co-authors an article with a researcher at the Defense Information Systems Agency on information assurance policy? For joint works, the authors are co-owners in the whole. In essence, any copyright transfer by the academic author has no effect on the of the absence of copyright for their research co-author.

    (3) and that the Government and citizens should relinquish control and the right to use the “work-for-hire” intellectual property of government employees to a specific industry.

    Authors do not seem to understand that once they transfer the copyright in their works, their use of the work for their own purposes is subject to the whims of the publisher. Further both Congress and the Whitehouse are considering extending the National Institute of Health Public Access Policy which requires that journal articles resulting from research funded in whole or in part by NIH be made available online to the public within 12 months of publication. This includes articles authored by government employees, contractors, grantees and partners

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