[License-discuss] Government licenses

Wed May 29 23:23:19 UTC 2019

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
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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