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Background on copyright of government documents

Recently the Federal Judicial Center published this book on copyright law:

Copyright Law – Second Edition (2006)
By Robert A. Gorman
Kenneth W. Gemmill Professor Emeritus
University of Pennsylvania Law School

This work is about copyright law and its history, but it has two pages on the copyright of Federal, State, and Local documents that I thought were worth sharing. The text below appears on pages 52-54 of the paper volume and pages 60-62 of the PDF file.

Government Works

It is obviously in the public interest that persons be able freely to quote from — and indeed to reproduce in full — federal statutes, regulations, court opinions, legislative and commission reports, and the like. Section 105 of the Copyright Act provides: “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” In section 101, a “work of the United States Government” is defined as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” The House Report states that the intention is to apply this definition in the same manner as the definition of “works made for hire” by employees in the scope of their employment.130 Not swept within the exclusion under section 105 would be a work commissioned by a branch of the U.S. Government and authored by an “independent contractor” or a freelance writer or artist.

As an example of the operation of these statutory provisions, one might consider this monograph on copyright law, prepared under contract for the Federal Judicial Center. Its author is not an “employee” of the U.S. Government, and so it cannot be prepared as part of any “official duties” with the Government. Accordingly, this monograph is eligible for copyright protection in the name of the author. (The author has in fact agreed voluntarily to transfer the copyright to the Federal Judicial Center, which may and does hold a valid copyright as transferee pursuant to section 105. It is, of course, for the Center to decide whether to enforce that copyright or rather to allow some or all members of the public to make copies.) Had the work instead been written by, say, an employee in the Copyright Office as part of his or her job responsibilities, it would indeed be treated as a work of the U.S. Government and would thus be ineligible for copyright protection.

No express provision of the Copyright Act similarly consigns to the public domain works prepared by employees of state and local governments. In 1888, however, the Supreme Court in Banks v. Manchester131 held that state judicial opinions are ineligible for federal copyright protection because state judges are paid with public funds (the implication being that the public is therefore the owner), and because, as a matter of policy, the public interest is served by free access to the law by persons expected to conform their conduct to it (a “due process” rationale). The same rationales were without much dispute extended to state legislation and administrative regulations. After an uncontentious century, the issue of copyrightability of official state materials has recently come to the fore in two contexts.

The first is the nature and range of state materials that are to be analogized to legislation and court decisions, with copyright denied. The Court of Appeals for the Second Circuit has held132 that official county tax maps — showing the ownership, size, and location of real property parcels in each of the political subdivisions of Suffolk County in New York — are not automatically stripped of copyright simply because they are authored by county officials and because they are used as a basis for the assessment of property taxes. The court held that the taxing statute affords the public adequate notice of their obligations, so that state ownership of the maps would create no problems of due process, and it remanded so that further evidence could be presented on the issue of the county’s need for copyright as a financial incentive for its mapmaking activity.

The second relevant issue of current importance is whether privately authored codes — such as building codes and fire codes, or even model laws — that are written by expert groups lose their copyright when they are adopted (often simply by reference) by a legislative body, say in a county or town. The few cases addressing this question have provided a less-than-definitive answer. However, the Court of Appeals for the Fifth Circuit, sitting en banc, concluded in 2002 in a sharply divided decision133 that — although such privately drafted codes are protected by copyright at the outset — they are thrust into the public domain when they are adopted by a town as its authoritative legal text, at least when such adoption is actively sought by the drafting body.

The principles of Banks v. Manchester were held to be controlling, although the dissent concluded that a denial of copyright would pose a threat to the useful provision of such codes to busy and underfunded municipal entities. The majority distinguished the situation from the several cases involving the mere “reference” by a city or state to some copyrighted material, privately authored and already in private commercial use; in those cases, involving for example a state’s reference for insurance purposes to automobile values contained in the well-known Red Book (of the National Automobile Dealers’ Association), the courts have concluded that copyright is not lost.134

Please see book for footnotes.

I hope that this relatively brief excerpt from the book has both helped you to understand copyright as applied to government works and induced you to read the rest of the book which has also been distributed in paper through the Federal Depository Library Program.

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

1 Comment

  1. Thanks for posting. Copyright’s been on my mind recently. Today there was a troubling post by Cory Doctorow on boingboing.net about USC threatening students with misleading half-truths about copyright compliance. I also came across a video recently posted to questioncopyright.org about public misperception about copyright, what it’s for, how it got started, how they feel about filesharing, etc. Plenty of food for thought here.

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