Digital Law Online: Government Works

The Copyright Act of 1976 specifically exempts works created by the federal government from copyright protection, continuing a provision from the previous copyright acts. Section 105 states:

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. {FN38: 17 U.S.C. §105}

Section 101 clarifies what this includes:

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties. {FN39: 17 U.S.C. §101}

Note that this is a special rule that federal government works are always in the “public domain.” Public domain works have no copyright owner, and anyone can use the work as they see fit without infringement. Besides federal government works, public domain works include those works so old that their copyright has expired, works that fell into the public domain because of a failure to comply with a requirement like notice or registration, and works whose authors have dedicated them to the public.

The 1976 Act is silent on whether the works of state or local governmental agencies can be copyrighted, but there are cases holding that works published by state or local governments are eligible for copyright protection.

II.D.2. Government Contract Works

The prohibition against copyrights for United States Government publications does not apply to the works produced under government contracts. This was discussed by the drafters of the Act:

A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee, to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a “double subsidy,” and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation, and the basically different policy considerations, applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.

The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions. {FN40: H.R. Rep. No. 94-1476 at 59}

A reasonable test of whether a government contractor should be allowed to copyright a work produced under the contract, either for its own benefit or for transfer to the government, should include whether the information is necessary in the normal functioning of government. If the government contracts to have its laws or regulations written, or for something that is incorporated by reference in a law or regulation, that work should not be protected by copyright. Although when such a law or regulation is written, it will automatically be copyrighted, the contractor should be required to dedicate the copyright to the public, or agree to distribute it to anybody, charging only for the cost of copying.

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