[License-discuss] Government licenses

Pamela Chestek pamela at chesteklegal.com
Wed May 29 20:44:42 UTC 2019

Wouldn't the government's copyright interest outside of the US be
limited by the Rule of the Shorter Term under the Berne Convention? And
so where the term in the US is "zero," wouldn't it be zero in those
countries that observe the Rule of the Shorter Term?


Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com

On 5/28/2019 9:34 PM, John Cowan wrote:
> On Tue, May 28, 2019 at 5:33 PM Christopher Sean Morrison via
> License-discuss <license-discuss at lists.opensource.org
> <mailto:license-discuss at lists.opensource.org>> wrote:
>     Yes!  Even to say it’s in the public domain is misleading.  It’s
>     not a USC term.
> It's true that "public domain" is not *defined* in 17 U.S.C., but it
> is *used* there seven times.  So turning to a dictionary, we find this
> in the American Heritage Dictionary, 5th edition: "The condition of
> not being protected by a patent or copyright and therefore being
> available to the public for use without charge", and this in Merriam
> Webster Online: "[T]he realm embracing property rights that belong to
> the community at large, are unprotected by copyright or patent, and
> are subject to appropriation by anyone[.]"  So the term is well-defined.
>     Saying something from the Gov’t is “public domain” typically just
>     means it went through a public release process and there's no
>     intention to assert rights.
> No, it means that there is no copyright owner.  17 U.S.C.  §105 says:
> "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."  The term “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"
>     While works of Gov’t employees typically don't have copyright
>     protection under Title 17 and could easily be released "into the
>     public domain”,  
> They *are* in the public domain (unless they were not part of the
> author's official duties).
>     that doesn’t mean they have to release it, can release it,
> If by "release" you mean "publish", you are of course right.   But if
> by "release" you mean "place in the public domain", you are wrong, as
> shown above.
>     or that there aren’t other mechanisms for releasing it NOT “into
>     the public domain.”
> There are no such mechanisms.  A copyrighted work can have its
> copyright transferred, but a work that is not in copyright (whether
> because the copyright has been expired or forfeited, or was expressly
> waived by the owner, or never existed in the first place) cannot be
> removed from the public domain except by Act of Congress.  This has
> happened several times in the past, notably 1893 (restoring copyright
> forfeited for lack of certain formalities if reregistered), 1919, 1941
> (for the benefit of foreign authors whose copyrights expired during
> the war, when they could not renew them), 1976 (extension to life+50),
> and 1989 (extension to life+70), plus a number of private bills in the
> 19C for the benefit of specific authors.
>     Gov’t regularly distributes software that otherwise has *no* Title
>     17 protections to foreign and domestic recipients, under
>     contractual terms.
> So they may, but if the recipients transfer the software to third
> parties, the recipients are in breach but the third parties are not,
> for lack of privity and because there is no in rem right in the nature
> of copyright.  Much the same is true of classified materials (as
> opposed to the U.K. where receiving and further disseminating such
> materials is separately criminalized.
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