[License-discuss] Government licenses

[Brendan Hickey]

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> 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
> 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> 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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