[License-discuss] Government licenses

Pamela Chestek pamela at chesteklegal.com
Thu May 30 12:41:10 UTC 2019


We're talking about different concepts, copyrightability versus term. No
one would dispute that the government produces copyrightable subject
matter. It's just a different theory for arguing that a US government
work has lost protection outside the US and wondering if anyone has
tried it.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com

On 5/29/2019 7:50 PM, Brendan Hickey wrote:
> Typefaces are not subject to copyright protection in the US, while
> they are in several jurisdictions, including Ireland. Is a typeface
> created in the United States protected by copyright law in Ireland
> when it's copied in Dublin?
>
> I'm not sure what purpose 5(2) would accomplish if not apply domestic
> Irish law in this scenario. Is there another interpretation I'm missing?
>
> Brendan
>
> On Wed, May 29, 2019, 19:24 Pamela Chestek <pamela at chesteklegal.com
> <mailto:pamela at chesteklegal.com>> wrote:
>
>     The Berne Convention also says in Article 7(8) that "unless the
>     legislation of that country otherwise provides, the term [of
>     protection] shall not exceed the term fixed in the country of
>     origin of the work."
>     https://www.wipo.int/treaties/en/text.jsp?file_id=283698#P127_22000
>     The country of origin is the United States and the term, for
>     government works, is zero years. So unless legislation in a
>     different country provides otherwise, the term in a different
>     country shall not exceed that of the US, that is, it shall not
>     exceed zero.
>
>     No one seems to argue this. Maybe the argument is that since it
>     isn't protected by copyright in the US at all there is no term,
>     but I haven't seen any explanation one way or another.
>
>     Pam
>
>     Pamela S. Chestek
>     Chestek Legal
>     PO Box 2492
>     Raleigh, NC 27602
>     919-800-8033
>     pamela at chesteklegal.com <mailto:pamela at chesteklegal.com>
>     www.chesteklegal.com <http://www.chesteklegal.com>
>
>     On 5/29/2019 5:18 PM, Brendan Hickey wrote:
>>     Pam,
>>
>>     I'm not sure that it would work this way. Per Article 5(2) of the
>>     Berne Convention:
>>
>>     (2) The enjoyment and the exercise of these rights shall not be
>>     subject to any formality; such enjoyment and such exercise *shall
>>     be independent of the existence of protection in the country of
>>     origin of the work.*Consequently, apart from the provisions of
>>     this Convention, the extent of protection, as well as the means
>>     of redress afforded to the author to protect his rights, shall be
>>     governed exclusively by the laws of the country where protection
>>     is claimed.
>>
>>     https://www.wipo.int/treaties/en/text.jsp?file_id=283698#P109_16834
>>
>>     Brendan
>>
>>     On Wed, May 29, 2019, 16:45 Pamela Chestek
>>     <pamela at chesteklegal.com <mailto:pamela at chesteklegal.com>> wrote:
>>
>>         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?
>>
>>         Pam
>>
>>         Pamela S. Chestek
>>         Chestek Legal
>>         PO Box 2492
>>         Raleigh, NC 27602
>>         919-800-8033
>>         pamela at chesteklegal.com <mailto:pamela at chesteklegal.com>
>>         www.chesteklegal.com <http://www.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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