Copyright in Government Publications. Historical Background, Judicial Interpretation, and Legslatire Clarification

• Author: Captain Brian R. Price
• Pages: 01

1. INTRODUCTlONt

Ever since 1895, statutory provisions have prohibited the assertion of copyright in any publication of the United States Government.1 Although the interaction of the statutory provisions contained in the printing law and in the copyright law,

oran) alhergo>ernm

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Seas 119'5) hair. without eiccpoon. heen enacted inlo lau The Act bacomai full) rifeitire on Januari I. 1971 Am of Oct 19, 1976, Pub L No 94.J11 $5 101.301, 90 Slat 2541 Under s~ccion 301(b) no right8 an?lng under the old BCI prior 10 Jan. uan I. 1979 are affected Cansrquenil?, OYCV thc next 11 months. YI uill opcrifi underlheoldlnu. huiuiihanr)clouard chcniu P L ~ ~ u L c

The arucle predicts no lrgilalive solnti~n to tho prablsm of copynghr 10 works produced Under government CDB~IPCI. bur the Conireis ma) mkr anorher look II the entire aria Thc bill ~~ignallypaiicd b) Lhc Home prowdcd that the hallanal Technical Informalion Srriice. B part of the I*panmeni of Commerce could copynghl a Ilmaed numbcr of documents That provmn UPS ehmlnatrd from rhr cmfermm bdl ID YILW of the confercer' promlsc lhal the Senate WIII conndrr fhc marw m 1977 122 CON0 RPC Hi2017 IH dalli cd 19761 frcmarkn of Mr Kasfmmcsri. ~ r r

H R

Rrc HI0911 LH daily rd 1976). passed 11% 5~rbionof the cop)neht la- rcilsmn

B~cauis the Senate and Hauic rersioni WIR not Idenucal, rhr bills *ire rcferrrd Io B conference cammltree vhmh resolved fhc connlrti See H R RIP No 961711. 94th

and the pronsions themselves raise almost as many questions as the provisions answer,' the major issue of what constitutes a publication of the United States Government has been largely settled by administrative practice,] the courts4 and the Interpretations of cammentators.s Nonetheless, questions regarding the nghts of military authors in works produced in the course of their duties still arise, and little readily a\ailable military authority~savaiiabletoquicklyresolve theseissuesThree other questions of rarying degrees of importance are alive In the area. although two mag be neatly resolved by the Congress in the near future. The two easily resolved questions concern the common law nghts of the Government In unpublished u,orks and the ability of the Government to secure a copyright In works that are nor "publications" in the sense that they are no1 printed documents. The third question is somewhat more complex It IS whether the prohibition against copyright in government publications should extend to materials produced under government funded grants or contracts. This issue has not been litigated in recent years and has emerged only in

a '"govrrnmen! pubhcanon"" 5rr Seclion I\ - rndicnal ihal has ken "publlshcd' ~meralli' /L nexus uirh thr Gawrnmml Ihsc makes Auchn a i unpub!nihed vork on !'le ground rhal 81 IS no1 a

Rtckoier 294 F2d 262 ID C CI.

the congressional hearings considering the revision of the copyright laws. The committee proceedings have provided a forum for adsocates on either side of the question' and have produced little in the way of balanced commentary. Most of the presentations have ignored the historical basis for the copyright prohibition as well as two programs which have explicitly authorized copyright in government subsidized materials for several years.

This article will trace the development of the American common law and statutory prohibitions on copyright in government publications and synthesize the vanous reasons the courts first, and then the Congress, determined that governmental works should not be copyrighted. This discussion will illustrate situations in which the courts have found the restriction applicable and will consider some oi the other problems typically associated with the publication of materials created by government authors. Using the historical and theoretical bases for the prohibition of copynght in government publications, the article will then address two questionable and probably incorrect provisions of the Army regulation; whether the Government may assert common law copyright in unpublished government materials; and whether materials produced under government contracts are the proper subject of copyright. The discussion of these issues will draw upon the published congressional hear-ings considering the various bills to revise the copyright law and will note proposed legislative alterations where appropriate

11. AMERICAN COMMON LAW ORIGINS A. EARLY SUPREME COGRT CASES

Even before Congress enacted the first statutory prohibition of copyright in government publications, the Supreme Court, first in a casual aside, and 1at.r in a more clearly articulated holding, determined that on ~..bhc policy grounds there could be no copyright in the written judicial opinions of the courts. In Wheoron Y. Perers8 the Court, after a thorough review oi the British common law, the Umied States Constitution and

.As s general rule hook publishers and researchers have raught en cxrrplmn Io Ihr star~ie uhlrh vould pcrmli them thc opparruna\ 10 pubhh saumrnenr sponsorrd

the early copyright act. held that after publication no common law right could serve as the basis far copyright; and that ~norder to obtain a copyright, compliance with the notification and delivery provisions of the statute was indispensable. Before remanding the case for trial on the issue of compliance with the act, the Courr, Joined by Justices Thompson and Baldwin, who had dissented on the merits, gratuitously remarked

Thai rhr COW #re unanlmoud! d the opirnm chat no :cparrrr ha, or can haw an$ cop!nght 10 rhr UrltI~n op1mom dehwmd by rhli ~ e ~ n , and

lhal thrludgel thereof cannot confer nnan! reporter an) such rlghf *

In its first attempt to eiucidate the position taken in the final lines of Whearon v. Peters lhe Court appeared to rely on three somewhat related theories, each having its basis in "public policy." The case of Banks v. MQncherrerlo involved a statutory scheme whereby the reporter of the Ohio Supreme Court was to secure a copyright in that court's opinions for the benefit of the state. The Court rejected the plaintifl's contention that the reporter could obtain a copyright in the opinions, stalements of the cases. syllabi or headnotes, all of which had been prepared by thejudges The first basis of the opinion stated that:

In no proper enr re can the judge uha (prrparcd aII chr malcml 10 bc

30 as le canfrr cap)nehrcd] b regarded 81 Lhelr allthor 01 pmpmlaran! 1111e on ihcrlair '

Then the Court commented that the judges

tation of Wheaton's name, the

pacity to empower the reporter to obtain a copyright in their decisions What was unclear was whether this result flowed from the judges' failure to obtain the status of 'authors". whether the judges' receipt of statutory compensation precluded them from obtaining an addirional pecuniary reward; expositions of the law. were

simply noncopyrightable. This final consideration was in all probability the motivating rationale, because in its final sentence, the Court extended its language in Wheaton, which involved its own decisions, to all courts: the Justices in effect stated that no judge of any court could confer exclusive rights to his judicial labors on any person.

One month later the Court had another opportunity to clarify Wheaton and took the opportunity to inferentially reemphasize the final rationale of Banks as the basis of its decision. InCallaghan v. Myers,l4 the plaintiff was the assignee of the reporter of the Supreme Coun of Illinois who had prepared considerable original material and appended it to the opinions of the coun. The defendant, who had been sued for infringing the assignee's copyright, contended that the reports were public property and therefore not susceptible of private ownership. Myers also alleged that the reporter was not an author within the meaning of the copyright act. The Court, relying on what was not stated in Wheaton, concluded that the Court must have determined that Wheaton could have obtained a copyright in the materials which he appended to the Supreme Court's opin-ions. Had this not been the case, there would have been nocause to return the case for trial on the issue of compliance with statutory prerequisites. Further, the Coun found the reporter to be an author under the statute and despite his public position and salary, found him to be capable of obtaining copyright in his additions to judicial opinions absent any explicit inhibition. Clearly then, the Court read Whearon and Banks as having precluded the assertion of property rights in judicial opinions onthe basis that the law cannot become the property of any one individual. It excluded the "author" and "compensation" bases of the Banks opinion and reiied upon it for the proposition that "there can be no copyright , , , in the opinions of the judges, or in the work done by them in their official capacity as judges. . .'''3 presumably because the freest access to such works should be encouraged.

This theory of the Court's rario decidendi has not been universally accepted by the commentators who have discussed the issue. While Howell strenuously questions whether any copyright can subsist m judicial reports,16 Nimmer seems to view the double compensation rationale as a persuasive basis for disabling government employees from obtaining copyright in materials produced within thescope of their employment:

Nimmer continues by stating that this exception for reporters who were paid government employees may be explained on the basis of "a time honored usage."'B Indeed, such an argument has a substantial persuasiveness to it. The fact that reporters of court decisions may copyright matenal they prepare in the scope of their duties probably 1s a result of the Court's failure to squarely face the question of the copyrightability of a government employee's work in Wheoron Y. Perers. Between Wheaton and the two 1888 decisions, Banks and Callaghan, lower courts had commented upon the Supreme Court's inferential ruling that Wheaton was...