[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.
>>>
>>>
>>>
>>> _______________________________________________
>>> License-discuss mailing list
>>> License-discuss at lists.opensource.org <mailto:License-discuss at lists.opensource.org>
>>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>>
>> _______________________________________________
>> License-discuss mailing list
>> License-discuss at lists.opensource.org
>> <mailto:License-discuss at lists.opensource.org>
>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>>
>>
>> _______________________________________________
>> License-discuss mailing list
>> License-discuss at lists.opensource.org <mailto:License-discuss at lists.opensource.org>
>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>
> _______________________________________________
> License-discuss mailing list
> License-discuss at lists.opensource.org
> <mailto:License-discuss at lists.opensource.org>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>
>
> _______________________________________________
> License-discuss mailing list
> License-discuss at lists.opensource.org
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20190530/da2ba724/attachment-0001.html>
More information about the License-discuss
mailing list