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Copyright status of work by the U.S. government

From Wikipedia, the free encyclopedia

A work of the United States government, as defined by the United States copyright law, is "a work prepared by an officer or employee" of the federal government "as part of that person's official duties."[1] In general, under section 105 of the Copyright Act,[2] such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

This act only applies to U.S. domestic copyright as that is the extent of U.S. federal law. The U.S. government asserts that it can still hold the copyright to those works in other countries.[3][4]

Publication of an otherwise protected work by the U.S. government does not put that work in the public domain. For example, government publications may include works copyrighted by a contractor or grantee; copyrighted material assigned to the U.S. Government; or copyrighted information from other sources.[5]

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Transcription

Americans love their independence... a nation of pioneers living out from under the eye of government ... (except for all the government). As such, unlike many other countries, Americans don't have a national ID card... ...and even the idea of creating one is a political hot topic every election cycle. The results are always the same: we don't need no ID card. But suspiciously, US citizens do already have this: a card with a unique number that many places will ask for to prove who you are. This is the Social Security card and number... ...and it has become a quasi ID / unique password to identify citizens... ...though that was never its intended use. For Americans, keeping this number secret is super important... because it's the key to the government and banks to identifying you as you... … and losing control of it is the worst kind of identity theft that can happen. So how did Americans end up with a national ID number… … that isn't one and a card terribly unfit to identify? It all started in the great depression of long long ago… … when the government created the social security program, … … a kind of mandatory pension: Citizens would be required to pay in during… … their working lives and withdraw in their retirement. The idea being that even if past-you didn't save… … for the sunset years of future-you, the eventually old current you… … would still have something to live on. Now if you want to think of social security as a benefit… … the government provides or as a bank account that's yours … … is… controversial, but either way this number was created … … to track what you put in and what you take out. Now, because this was just one government program… related only to your working life, you only needed to apply… …for a social security card when you actually started working. But over time, that changed and the younger you are, …the more likely you've had one from the moment of your birth… …despite babies' worthlessness as child laborers. So why? Well it goes back to Americans' having no national identity card… …with a national number, which makes it harder for institutions… … to keep track of people over their lives. With hundreds of millions of citizens, names and birthdays aren't unique, people move, people marry, people change names. And if you're trying to keep track of everyone, as say the United States Tax department might want to do, it can be a real problem, particularly in the pre-computer days. "Hey, wait a minute, look, at *this* number just lying around," the tax department said. "It's not supposed to be used as an ID number," said the social security department. "There are security reasons you shouldn't--" "Yoink!" Thus the tax department piggy-backed off of the work the social security department did assigning working adults a number, which made tracking taxes easier … and they highly encouraged parents to get a social security number… … for their children by tying it to a tax discount. Crazily, counting children for tax rebates used to run on the honor system. The US Tax Department told people: 1. We will give you a discount on your taxes for each child you have. And: 2. Write down your number of children, … …please be honest, we don't have a way to check. Which was just asking, nay, begging people to lie. Which they did, birthing on paper millions of phantom children. But after requiring each kid to have a social security… … account number connected to a birth certificate… … before the parents could get the tax discount, … … all those phantoms faded away. This turned the social security number into a unique number… … that all citizens had right from the start, … and that made it easy for lots of other places like banks … ... and schools and companies and landlords … … to also piggy back on the number as an easy way… … to keep track of people without having to come up… … with their own systems and to be able to exchange information… … about people between institutions. This is super useful for institutions, so, … …the desire of Americans to not have a national identity card led, … …somewhat inevitably, … …to the nearest thing available being used as a substitute… … which ended up being worse because the social security number… … was never designed to be used this way in the long, long ago. And you can tell because it has no security built into it. Ok, so there's this neat trick that most ID numbers use… ...where they can check themselves to see if they're invalid. The simplest way is to have the last couple digits… … match the sum of the others. All kinds of ID cards and bar codes do this because it makes it impossible… … to enter an incorrect number in a computer, … … and makes it harder for fraudsters to guess valid numbers. This is why if you try to buy something online by guessing… … a credit card number, the website knows it's invalid… … before you even click buy. But because the Social Security number started life… … in the long, long ago, it's just a number… … with no self-checking security built in. Worse, if you're born pre-2011 it's not that hard to just guess … …most of the number: the first three digits are the state where the … parents applied for the card and the last four digits just count up in order, … … and the middle digits follow a regular pattern. So you can take your number, subtract one and that's a valid number… … of someone who was probably born in the same hospital… … as you around the same time. Thus a fraudster who knows your time and location of birth… … can probably get the first five digits by just looking them up on a chart. Institutions ask for the last four digits as a code to identify you as you… … which means it's not that hard to put together your number… … from a security leak anywhere or just by connecting a few puzzle pieces. The physical card itself is no help either: … just a literal piece of cardboard, … … depending on when it was issued, not even laminated. The social security department used to print… … 'not to be used for identification' on the cards… … as a futile attempt to stop institutions for asking for them as IDs, … …because there's nothing identifying a person on the card. But eventually they gave up and removed these words… … because, unlike passports or driver's licenses, … … you can assume all Americans will have this one card. All this means your social security card and number… … probably have less security than your library card, … …while being vastly more important. So it fails at being a secure number, … … it fails at being a good ID card, … … but at least it is universal* which is why people use it. Oh hello, asterisk, my old friend. No, of course not, this program isn't actually universal: …not everyone has a social security account number, … …and not everyone pays into the program. If you want to get out of paying you'll just need to: First: Never have received any social security benefits… … and give up your rights to getting any in the future. Which seems fair. In addition you must also: Be a member of a religion opposed to the idea of social security. Usually because it’s a kind of insurance, and insurance is a kind of gambling. That's harder, but you could always just start… … your own religion if you were really serious about avoiding taxes. But your new religion must also: Provide for its elderly and dependent members. Which means you have to re-create a social security program of sorts … …in your religion (while also being against social security). But if creating a contradictory religion doesn't daunt you… Lastly, it must have existed continuously since 1950. Which is a giveaway that this exception was written pretty much exclusively… for the Amish and Mennonites, … … and kills dead your plans unless you’re willing … … to undergo a serious change in lifestyle. It doesn't stop there: …keep digging and you’ll find all sorts of other weird, weird exceptions: … including some railroad workers, or firefighters, or police, … … or teachers (but only in Chicago). Usually these are groups that in the long long ago… … were able to get out of the program at its creation date. So nothing's ever straight forward. And that's the deal with this social security card: … containing a national number for citizens that don't want one, … … on an identification card, that fails at identification, … … given to all citizens -- except when it isn't -- … …for a program that's universal, except when it's not. This episode has been brought to you by Squarespace,… … whether you need a domain, a website, or online store, … … make your next move with Squarespace. Does your brand new social security-avoiding religion… … need a website to spread the good news? You should use Squarespace’s all-in-one platform. Their beautiful templates will make it easy to set up, and… … there’s nothing to install, patch, or upgrade, ever. Squarespace is what I use for my personal website… … and I really think you should use it, too. Start your free trial today at SquareSpace.com … … and enter offer code “Grey” to get 10% off your first purchase.

Contents

History

The first Federal statute concerning copyright in government publications was the Printing Law enacted in 1895.[6] Section 52 of that Act provided that copies of "Government Publications" could not be copyrighted.

Prior to 1895, no court decision had occasion to consider any claim of copyright on behalf of the Government itself. Courts had, however, considered whether copyright could be asserted as to the text of laws, court decisions, governmental rules, etc., and concluded that such material were not subject to copyright as a matter of public policy.[6] But other material prepared for State Governments by their employees, notably the headnotes, syllabi, annotations, etc. prepared by court reporters, had been held copyrightable on behalf of the States.[6]

The Copyright Act of 1909 was the first copyright statute to address government publications. Section 7 of the Act (later codified as Section 8 of title 17 U.S.C.) provided that "No copyright shall subsist * * * in any publication of the United States Government, or any reprint, in whole or in part, thereof: * * *."

Copyright in government works prior to 1895

Prior to the Printing Act of 1895, no statute governed copyright of U.S. government works. Court decisions had established that an employee of the Federal Government had no right to claim copyright in a work prepared by him for the Government.[6] Other decisions had held that individuals could not have copyright in books consisting of the text of Federal or State court decisions, statutes, rules of judicial procedures, etc., i.e., governmental edicts and rulings.[6] Copyright was denied on the grounds of public policy: such material as the laws and governmental rules and decisions must be freely available to the public and made known as widely as possible; hence there must be no restriction on the reproduction and dissemination of such documents.[6]

While Copyright was denied in the text of court decisions, material added by a court reporter on his own - such as leadnotes, syllabi, annotations, indexes, etc.- was deemed copyrightable by him, although he was employed by the government to take down and compile the court decisions.[6] These cases may be said to have established the principle that material prepared by a government employee outside of the scope of the public policy rule was copyrightable; and that the employee who prepared such material on his own could secure copyright therein.[6]

There appears to be no court decision before 1895 dealing directly with the question of whether the United States Government might obtain or hold copyright in material not within the public policy rule.[6] But the question did arise with respect to State Governments. In the nineteenth century much of the public printing for the States was done under contract by private publishers. The publisher would not bear the expense of printing and publishing, however, unless he could be given exclusive rights. To enable the State to give exclusive rights to a publisher, a number of States enacted statutes providing that court reporters or other State officials who prepared copyrightable material in their official capacity should secure copyright in trust for or on behalf of the State. Such copyrights for the benefit of the State were sustained by the courts.[6]

Two cases before 1895 may also be noted with regard to the question of the rights of individual authors (or their successors) in material prepared for, or acquired by, the United States Government. In Heine v. Appleton, an artist was held to have no right to secure copyright in drawings prepared by him as a member of Commodore Perry's expedition, since the drawings belonged to the Government.' In Folsom v. Marsh, where a collection of letters and other private writings of George Washington had been published and copyrighted by his successors, the purchase of the manuscripts by the United States Government was held not to affect the copyright. The contention of the defendant that the Government's ownership of the manuscripts made them available for publication by anyone was denied.[6]

The Printing Law of 1895

The Printing Law of 1895, which was designed to centralize in the Government Printing Office the printing, binding, and distribution of Government documents, contained the first statutory prohibition of copyright in Government publications.[6] Section 52 of that Law provides for the sale by the Public Printer of "duplicate stereotype or electrotype plates from which any Government publication is printed," with the proviso "that no publication reprinted from such stereotype or electrotype plates and no other Government publication shall be copyrighted."

The provision in the Printing Act concerning copyright of government works was probably the result of the "Richardson Affair," which involved an effort in the late 1890s by Representative James D. Richardson (1843–1914) to privately copyright a government-published set of Presidential proclamations.[7][6]

The Copyright Act of 1909

Section 7 of the Copyright Act of 1909 (later codified as Section 8 of title 17 U.S.C.) provided that "No copyright shall subsist ... in any publication of the United States Government, or any reprint, in whole or in part, thereof: ...." Section 7 also contained a "savings clause," which stated that "The publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor."[6] The committee report on the bill that became the Act of 1909 explains that the savings clause was inserted "... for the reason that the Government often desires to make use in its publications of copyrighted material, with the consent of the owner of the copyright, and it has been regarded heretofore as necessary to pass a special act every time this was done, providing that such use by the Government should not be taken to give to anyone the right to use the copyrighted material found in the Government publication."[6]

The Copyright Act of 1976

The Sections of the Copyright Act that now govern U.S. Government work were enacted in 1976 as part of the Copyright Act of 1976. The House Report to the enacted legislation stated that "the basic premise of section 105 of the bill is the same" as section 8 of the former title 17.[8]

Derivative works consisting predominantly of government works

Section 403 of the 1976 Act introduced a new provision concerning documents consisting preponderantly of one or more government works. In essence, such works would be denied copyright protection unless the required copyright notice included a statement specifically identifying those parts of the work that were not U.S. Government work, and therefore subject to copyright protection. According to the House Report, this provision was

aimed at a publishing practice that, while technically justified under the present law, has been the object of considerable criticism. In cases where a Government work is published or republished commercially, it has frequently been the practice to add some “new matter” in the form of an introduction, editing, illustrations, etc., and to include a general copyright notice in the name of the commercial publisher. This in no way suggests to the public that the bulk of the work is uncopyrightable and therefore free for use.[9]

"To make the notice meaningful rather than misleading," section 403 of the 1976 Act required that, when the copies consist “'preponderantly of one or more works of the United States Government,' the copyright notice (if any) identify those parts of the work in which copyright is claimed. A failure to meet this requirement would be treated as an omission of the notice," resulting, absent the application of some exception, in the loss of copyright protection.[9][10]

Derivative works after the Berne Convention Implementation Act of 1988

The Berne Convention Implementation Act of 1988 amended the law to make the use of a copyright notice optional on copies of works published on and after March 1, 1989 and also revised Section 403. After the adoption of this act, a copyright notice was no longer necessary to secure copyright protection. Including the notice, however, does continue to confer certain benefits, notably in the challenging a defendant's claim of innocent infringement, where the question of proper notice may be a factor in assessing damages in infringement actions. Under the revised Section 403, these benefits are denied to a work consisting predominantly U.S. Government works "unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title."

Limitations

Works produced by contractors

Unlike works of the U.S. government, works produced by contractors under government contracts are protected under U.S. copyright law[disputed (for: only true at times)  ]. The holdership of the copyright depends on the terms of the contract and the type of work undertaken. Contract terms and conditions vary between agencies; contracts to NASA and the military may differ significantly from civilian agency contracts.[11]

Civilian agencies and NASA are guided by the Federal Acquisition Regulations (FAR). There are a number of FAR provisions that can affect the ownership of the copyright. FAR Subpart 27.4—Rights in Data and Copyright provides copyright guidance for the civilian agencies and NASA. Additionally, some agencies may have their own FAR Supplements that they follow.

Under the FAR general data rights clause (FAR 52.227-14), the government has unlimited rights in all data first produced in performance of or delivered under a contract, unless the contractor asserts a claim to copyright or the contract provides otherwise. Unless provided otherwise by an Agency FAR Supplement, a contractor may assert claim to copyright in scientific and technical articles based on or containing data first produced in the performance of a contract and published in academic, technical or professional journals, symposia proceedings, or the like. The express written permission of the Contracting Officer is required before the contractor may assert or enforce the copyright in all other works first produced in the performance of a contract. However, if a contract includes Alternate IV of the clause, the Contracting Officer's approval is not required to assert claim to copyright. Whenever the contractor asserts claim to copyright in works other than computer software, the government, and others acting on its behalf, are granted a license to reproduce, prepare derivative works, distribute, perform and display the copyrighted work. For computer software produced under FAR contract, the scope of the government's license does include the right to distribute to the public,[12] but for "commercial off the shelf software", the government typically obtains no better license than would any other customer.

Transfers

The federal government can hold copyrights that are transferred to it.[2] Copyright law's definition of work of the United States government does not include work that the government owns but did not create.[1] For example, in 1837, the federal government purchased former U.S. President James Madison's manuscripts from his widow, Dolley Madison, for $30,000.[13] If this is construed as covering copyright as well as the physical papers, it would be an example of such a transfer.[14]

Exemptions

Works by certain independent agencies, corporations and federal subsidiaries may not be considered "government works" and may, therefore, be copyrightable. For instance, material produced by the United States Postal Service are typically subject to normal copyright.[15] Most USPS materials, artwork, and design and all postage stamps as of January 1, 1978, or after are subject to copyright laws. Works of the former United States Post Office Department are in the public domain (due to its former position as a cabinet department).

15 U.S.C. § 290e authorizes U.S. Secretary of Commerce to secure copyright for works produced by the Department of Commerce under the Standard Reference Data Act.[16][17]

State, territorial and local governments

The lack of copyright protection for works of the United States government does not apply to works of U.S. subnational governments. Thus, works created by the government of a state or local government may be subject to copyright. Some states have placed much of their work into the public domain by waiving some or all of their rights under copyright law. For example, the constitution and laws of Florida[18] have placed its government's works in the public domain. Unorganized territories (such as American Samoa and the former Trust Territory of the Pacific Islands)[19] are treated, for copyright purposes, as the U.S. government. Their works therefore fall under § 105 and lack copyright protection.[20]

Other restrictions

Certain works, particularly logos and emblems of government agencies, while not copyrightable, are still protected by other laws that are similar in effect to trademark laws. Such laws are intended to protect indicators of source or quality. For example, some uses of the Central Intelligence Agency logo, name, and initialism are regulated under the CIA Act of 1949 (50 U.S.C. § 403m).

Edicts of government

The United States Copyright Office considers "edicts of government," such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents, not copyrightable for reasons of public policy. This applies to such works whether they are federal, state, or local as well as to those of foreign governments.[21]

See also

In other countries

References

  1. ^ a b 17 U.S.C. § 101 "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."
  2. ^ a b 17 U.S.C. § 105
  3. ^ "Does the Government have copyright protection in U.S. Government works in other countries?". 
  4. ^ House Report No. 94-1476, p.59 ("The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.").
  5. ^ CENDI Copyright Working Group. "Frequently Asked Questions About Copyright:Issues Affecting the US Government". Oak Ridge, TN: CENDI Secretariat. Retrieved July 31, 2015. 
  6. ^ a b c d e f g h i j k l m n o Copyright in Government Publications, in: Copyright Law Revision: Studies Prepared for the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess. 29-30 (Comm. Print 1961)(Study 33), pp. 23-42.
  7. ^ Price, Brian (Fall 1976). "Copyright in government publications: Historical background, judicial interpretation, and legislative clarification". Military Law Review. 74: 19–65. 
  8. ^ House Report No. 94–1476. "The basic premise of section 105 of the bill is the same as that of section 8 of the present law [section 8 of former title 17]—that works produced for the U.S. Government by its officers and employees should not be subject to copyright. The provision applies the principle equally to unpublished and published works. The general prohibition against copyright in section 105 applies to “any work of the United States Government,” which is defined in section 101 as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” Under this definition a Government official or employee would not be prevented from securing copyright in a work written at that person’s own volition and outside his or her duties, even though the subject matter involves the Government work or professional field of the official or employee. Although the wording of the definition of “work of the United States Government” differs somewhat from that of the definition of “work made for hire,” the concepts are intended to be construed in the same way. 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."
  9. ^ a b Historical and Revision Notes to 17 U.S.C. 403
  10. ^ § 403 Pub. L. 94-553 (Oct. 19, 1976)94 - 553 Pub.L. 94 – 553
  11. ^ CENDI Copyright Working Group (August 2004). "Frequently Asked Questions About Copyright". Commerce, Energy, NASA, Defense Information Managers Group. Oak Ridge, TN: CENDI Secretariat, Information International Associates, Inc. Retrieved July 22, 2005. 
  12. ^ See definitions of data and unlimited rights and 27.404-1 at https://acquisition.gov/far/current/html/Subpart%2027_4.html
  13. ^ An Act making appropriations for the civil and diplomatic expenses of Government for the year eighteen hundred and thirty-seven, 24th Cong., Sess. II, Ch. 33, 5. Stat. 163, 171, March 3, 1837
  14. ^ The following year, Congress authorized publication of the papers, suggesting that the transaction did include copyright. An Act authorizing the printing of the Madison papers, 25th Cong., Sess. II, Ch. 264, 5. Stat. 309-310, July 9, 1838
  15. ^ Compendium II: Copyright Office Practices, § 206.02(b) Archived February 11, 2011, at the Wayback Machine.
  16. ^ 15 U.S.C. § 290e
  17. ^ Compendium II: Copyright Office Practices, § 206.02(a) Archived February 11, 2011, at the Wayback Machine.
  18. ^ Florida Constitution Article I, §24(a)
  19. ^ Compendium II: Copyright Office Practices, § 1102.08(b)
  20. ^ Compendium II: Copyright Office Practices, § 206.02(e) Archived February 11, 2011, at the Wayback Machine.
  21. ^ Compendium II: Copyright Office Practices, § 206.01 Archived February 11, 2011, at the Wayback Machine.

External links

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