Copyrights in the United States Government (Training)

UNCLASSIFIED 102/20/2014
Copyright Training
for
MEDCOM Personnel

Disclaimers
24/14/2014
DISTRIBUTION STATEMENT A. Approved for public release; distribution is unlimited.
U.S. GOVERNMENT DISCLAIMER NOTICE. The views expressed in this
presentation are those of the author and do not necessarily reflect the
official policy or position of the Department of the Army, Department of
Defense, or the U.S. Government. The information appearing on this
presentation is for general informational purposes only and is not
intended to provide legal advice to any individual or entity. Please
consult with your own legal advisor before taking any action based on
information appearing in this presentation or any sources to which it may
cite.
UNLESS OTHERWISE STATED

History
Basics
Copyright in Government
Fair Use
Data/Software
Marking
Copyright Resources
Agenda

Copyrights
the
“Metaphysics of the Law”
In 1841 Justice Story wrote that “[Copyrights]
approach, nearer than any other class of cases
belonging to forensic discussion, to what may be
called the metaphysics of the law, where the
distinctions are, or at least may be, very subtle and
refined, and sometimes, almost evanescent.“
Justice Joseph Story
Folsom v. Marsh, 9 Fed. Cas. 342, 344, No. 4901 (c.
C.D. Mass,1841)

A Little History:
The earliest recorded historical case-law on the right to copy comes from
ancient Ireland. The Cathach is earliest example of Irish writing. Around 560 AD
St. Columba copied it from St. Finnian causing a controversy that precipitated
the Battle of Cúl Dreimhne in 561 AD (3000 dead).
King Diarmait Mac Cerbhaill gave the judgment :
"To every cow belongs her calf, therefore to every
book belongs its copy

Very first modern copyright law was the Statute of Anne. which was passed in
1710 in the Kingdom of Great Britain
800 authors, printers and book dealers
were incarcerated in the Bastille before it
was stormed in 1789.

In North America the colonies adopted a similar system of limited
monopolies. Following the revolution in 1788 Article I, section 8 of
the Constitution was ratified:
'The Congress shall have power . . . to
promote the progress of science and useful
arts by securing for limited times to authors
and inventors the exclusive right to their
respective writing and discoveries'.

•10 U.S.C. 2320 – Technical Data Rights
•10 U.S.C. 2386 – Acquisition of Copyrights, Patents, Designs, etc.
Title 10 USC (Armed Forces)
Title 15 USC (Trademarks)
Title 17 USC . (Copyrights)
•18 U.S.C. 1905 – Disclosure of Confidential Information.
Title 18 USC (Trade Secrets)
•28 U.S.C. 1498 – Patent and Copyright cases.
Title 28 USC (US Court of Federal Claims)
Title 35 USC (Patents)
Title 44 USC (Public Printing and Documents)

•Is it Copyright Protected?
•Who owns the Copyright?
•What rights exist?
•Any defenses?

What is Protected:
Section 102(a)
§ 102. Subject matter of copyright: In general
a) Copyright protection subsists, in accordance with this
title, in original works of authorship fixed in any
tangible medium of expression, now known or later
developed, from which they can be perceived,
reproduced, or otherwise communicated, either
directly or with the aid of a machine or device.

Subject matter of Copyright
Section 102(a) continued:
(1) literary works (including software);
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

Not Proper Subject Matter
OSJA USAMRMC Nov 2003
In no case does copyright protection for an
original work of authorship extend to any idea,
procedure, process, system, method of
operation, concept, principle, or discovery,
regardless of the form in which it is described,
explained, illustrated, or embodied in such work.

What is not protected
• Works that have not been fixed in a tangible form of expression
(performances that have not been written or recorded)
• titles, names, short phrases, and slogans; familiar symbols or designs;
mere variations of typographic ornamentation, lettering, or coloring;
mere listings of ingredients or contents
• Facts and works consisting entirely of information that is common
property and containing no original authorship (for example:
standard calendars, height and weight charts, tape measures and
rulers, and lists or tables taken from public documents or other
common sources)

What is not protected
Section 105 U.S. Government Works
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.
• This provision does not affect works by the States or works by
foreign governments.
• U.S. Government may claim copyright in works abroad.

What About?
164/14/2014
• Standards (HL7, ISO)
• Checklists
• Data/Databases (US vs. EU/AU/CA)
• Design Concepts/GUI/Trade Dress
• News (Stock Prices, Sports Scores)
• Fashion Designs
• Created Facts (Polls, Surveys, Economic Reports)

•Any defenses?

Who Can Claim Copyright
• the work of authorship immediately becomes the
property of the author who created the work
• works made for hire, the employer and not the
employee is considered to be the author
• if the parties expressly agree in a written instrument
signed by them that the work shall be considered a
work made for hire

COPYRIGHTS
Misinterpretations = Liability
OWNERSHIP ≠ NOTICE
Neither a copyright notice nor
registration is required for an
infringement to occur

Work Made For Hire
work made for hire includes:
1) work prepared by an employee within the scope
of employment and
2) work specially ordered or commissioned for use
as a contribution to a collective work, a part of an
audiovisual work, a translation, a supplementary
work, a compilation, an instructional text, a test,
answer material for a test, or an atlas

Copyright Terms – pre 1978

Source: http://copyright.cornell.edu/resources/publicdomain.cfm

JOINT WORKS
• If a work is created jointly by government and
contractor employee, contractor can
copyright portion it contributed to.
• Government retains royalty-free license to
exercise the copyright for governmental
purposes
• Contractors can re-package government
works and make money off the product!

•Any defenses?

The Bundle of Rights: Section 106
§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright
under this title has the exclusive rights to do and to
authorize any of the following:
(1) to reproduce the copyrighted work in copies or
phonorecords;
(2) to prepare derivative works based upon the copyrighted
work;
(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;

Section 106 Continued
(4) in the case of literary, musical, dramatic works, and
motion pictures and other audiovisual works, to perform
the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the
copyrighted work publicly; and
(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.

COPYRIGHTS
Mere ownership of a book,
manuscript, painting, or any
other copy or phonorecord does
not give the possessor the
copyright.

First Sale Doctrine
17 U.S.C. §109
The owner of a particular copy or phonorecord that
was lawfully made is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord.

•Any defenses?

COPYRIGHTS
THE ELEMENTS OF INFRINGMENT
1
• Ownership of a valid
copyright;
2
• Actual copying;
3
• Of protected constituent
elements

Waiver of Sovereign Immunity
Copyright/Patent Infringement – 28 USC 1498
Trademark Infringement - 15 USC 1122(a)
Trade Secret Misappropriation – FTCA (State Law); CDA;
Tucker Act

COPYRIGHTS
14 U.S.C. 1498
• Exclusive Action/No Injunction
• Court of Federal Claims
• Reasonable Damages
• 3 years Statue of Limitation

COPYRIGHTS
Defenses
Use of
Federal
Resources
Fair Use License

COPYRIGHTS
Defenses
Use of Federal Funds or Resources
No claim where copyrighted work was
prepared with “. . . Government time,
material, or facilities . . .” 28 U.S.C. §
1498(b)

FAIR USE
DoJ Guidelines for Government Reproduction of
Copyrighted Materials
“However, there is no basis for concluding that
the photocopying of copyrighted materials by the
federal government automatically or invariably
constitutes a fair use.”

Section 107 - the preamble
Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other
means specified by that section,
for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright
In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall
include-

The Factors
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and

The Factors - continued
(4) the effect of the use upon the potential market
for or value of the copyrighted work.
The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made upon
consideration of all the above factors.

COPYRIGHTS
FAIR USE
(a) Photocopying more likely will be deemed “fair”
where the photocopies are disseminated to a discrete
and limited audience within the government. To the
extent that copies are sold, or distributed broadly,
especially outside the government, that likely would
weigh against a finding of fair use.

COPYRIGHTS
FAIR USE
(b) Copying that is done "spontaneous[ly]," for
the purpose of facilitating an immediate and
discrete objective, is more likely to be a fair use
than systematic "archival" copying of extensive
materials for possible future use.

COPYRIGHTS
FAIR USE
(c) Copying materials for the purpose of
collecting or studying certain facts or ideas
contained therein -- as opposed to the work's
original expression -- increases the likelihood
that the reproduction will be a fair use.

http://librarycopyright.net/resources/fairuse/

Source: http://librarycopyright.net/fairuse/

Do not distribute or access YouTube content except through means that
YouTube makes available. Translation: don't download YouTube videos
unless there's a download link on the YouTube page or you have
permission from the copyright holder.
Uploading content to YouTube means that the author grants each user
of the Service a non-exclusive license to access the Content through the
Service, and to use, reproduce, distribute, display and perform such
Content as permitted through the functionality of the Service and under
these Terms of Service.
Details may be found on YouTube's Terms of Service webpage:
http://www.youtube.com/t/terms.
YouTube Videos

Contracts
Copyrights/Technical Data/Software/Documentation
• K Owns Title to Copyrights except Special Works (7020)
• Contractor Must Provide Assertion List/Restrictive Legends
• Government Receives 1 of 3 Licenses:
1. Unlimited
2. Government Use
3. Restricted - Limited (no less than)
• Parties MAY negotiate special terms
• Contractor must secure third party copyrights
• Use commercial terms not contrary to federal law

Government Data Rights
534/14/2014
SOURCE: http://www.acq.osd.mil/log/mr/psm/09_technical_data_rights_acquisition_strategy_guertin_2nov2011_v2.pdf

http://www.dtic.mil/dtic/submit/guidance/distribstatement.html

So what about Plato and
Aristotle?

COPYRIGHTS
Best Practices
• Communicate with your IT department (does it
have a web page hit counter?)
• Look for involvement of government funds and
resources.
• Suggest public domain materials:
• http://creativecommons.org/
• http://commons.wikimedia.org/
• http://en.wikipedia.org/wiki/Public_Domain_Resource
• Have a release readily available (see handout).
• Ask for help

COPYRIGHTS
Resources
•http://www.usdoj.gov/criminal/cybercrime/fai
ruse.htm
•https://acc.dau.mil/CommunityBrowser.aspx?i
d=30842
•http://fairuse.stanford.edu/
•http://www.copyright.gov/circs/

DoD Directives:
5105.60 National Geospatial-Intelligence Agency (NGA) PDF
5105.74 Defense Media Activity PDF
5120.20 Armed Forces Radio and Television Service (AFRTS) PDF
5122.05 Assistant Secretary of Defense for Public Affairs (ASD(PA)) PDF
5160.48 DoD Public Affairs and Visual Information(PA&VI) Education and
Training (E&T) PDF
5230.09 Clearance of DoD Information For Public Release PDF
5400.07 Freedom Of Information Act (FOIA) Program PDF
8000.01 Defense Information Management (IM) Program
Source: http://www.defenseimagery.mil/learning/vipolicy/dodd.html

Government Printing and Binding Regulations S. Pub 101-9 (Published by the
Joint Committee on Printing U.S. Congress).
DODI 5330.03 – Documentation Automation and Production Service (DAPS)
DoDI 5040.02 – Visual Information
DoDI 5040.07 – Visual Information (VI) Production Procedures
DoDI 5230.24 Distribution Statements on Technical Documents
DoDI 5410.15 – DoD Public Affairs Assistance to NGE Print and Electronic Media
DoDI 5410.16 – DoD Public Affairs Assistance to NGE Movie, TV and Video
DoDD 5535.4 – Copyrighted Sound and Video Recordings
Army Regulations:
AR 25-1 Army Knowledge Management and Information Technology
AR 25-30 The Army Publishing Program
AR 27-60 Intellectual Property
AR 70-14 Publications and Reprints of Articles in Professional Journals.
AR 70-31 Standards for Technical Reporting
AR 70-45 Scientific and Technical Information Program
AR 360-1 The Army Public Affairs Program
Army Pamphlet:
DA Pam 25-40 Army Publishing: Action Officers Guide.

Copyrights in the United States Government (Training)

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