thereof shall be copyrighted ***, and hereafter every publication printed at the Government Printing Office shall bear its imprint and the name of the committee, commission, office, department, or establishment of the Government causing the same to be published.22

The committee reports on the bills pointed out that the proposed definition "is similar to that which has been adopted by the Superintendent of Documents," and observed that "requiring the name of the conmittee, commission, department, etc., to be printed on all publications which it causes to be published * * * makes it certain whether such matter is a Government publication." 23

Such a construction of "Government publication" ignores the fact that material published by a Government agency may contain works of private authorship; and it also seems to ignore the fact that works produced or owned by the Government may sometimes be issued through private publishers. Both of these facts may be pertinent to the question of copyright, as will be pointed out below.

C. THE COPYRIGHT LAW

The first mention of Government publications in the copyright statutes is found in the Copyright Act of 1909,24 which consolidated and revised the prior statutes. The bill as first introduced in Congress in 1906 25 was the outgrowth of preliminary drafts by the Register of Copyrights and discussions of the drafts at a series of conferences held by the Librarian of Congress and the Register with representative of various interested groups. The preliminary drafts purported to incorporate in the statute both the common law prohibition of copyright in laws, judicial decisions, etc., and the Printing Law prohibition of copyright in Government publications. Thus, section 15 of the draft of 1906 provided:

26

That no copyright *** shall subsist: *** (b) In official acts, proceedings laws, or ordinances of public authorities-federal, state, or municipal-or judicial decisions; [or] (c) In any government publication, or any reprint, in whole or in part, of any government publication.

Objections to this language were voiced at the conference," principally by the publishers of State reports on the ground that it might be construed as prohibiting copyright in State publications which the courts had held copyrightable. Perhaps because of these objections, the bill as redrafted and introduced contained only the language that became section 7 of the 1909 Act (now section 8 of title 17 U.S.C.): No copyright shall subsist *** in any publication of the United States Government, or any reprint, in whole or in part, thereof: ***.

At the hearings on the bill the only discussion of this provision concerned a suggestion that copyright in the text of State laws and court decisions should be expressly prohibited, lest the statute be deemed to overturn the common law prohibition in this regard.28 This suggestion

22 See, e.g., H.R. 6539, 63d Cong., 1st Sess. § 44 (1913); S. 1107, 64th Cong., 1st Sess. § 82 (1915); S. 7795, 64th Cong., 2d Sess. § 18 (1917); H.R. 8362, 66th Cong., 1st Sess. § 31 (1919).

23 See S. REP. NO. 438, 63d Cong., 2d Sess. 50 (1914).

34 35 Stat. 1075 (1909). That act, with subsequent amendments, was codified and reenacted in 1947 as Title 17 of the United States Code.

25 S. 6330 and H.R. 19853, 59th Cong., 1st Sess. (1906).

26 Set forth in Copyright Office Bulletin No. 10 (first draft in print of Dec. 20, 1905, and second draft in print of Feb. 28, 1906).

27 Stenographic Report of the Proceedings of the Conference on Copyright, First Session, 119–126 (MayJune 1905); Third Session, 298-299 (1906).

28 Hearings Before Joint Committee on Patents on S. 6330 and H.R. 19853, 59th Cong., 1st Sess. 133-135 (Dec. 1906).

was dropped, apparently on the assumption that the statute would not remove the common law prohibition as to the text of State laws and court decisions. There was no discussion of the reason for permitting copyright in other State publications while prohibiting copyright in all publications of the United States. Nor do the hearings shed any light on the meaning of "publications of the United States Government."

There have since been two court decisions bearing on the meaning of that term. In Sherrill v. Grieves,29 the plaintiff, an Army officer and instructor at an Army school, wrote a book on military topography in his spare time, the writing of the book not being within his official duties. With his permission the Army authorities printed parts of the book as a pamphlet for use in the school, a copyright notice in the plaintiff's name being inserted in the pamphlet. In a suit for infringement the defendant contended that the pamphlet was a Government publication and hence the material therein was in the public domain. The court, finding that the preparation of the work was not within the scope of the plaintiff's employment by the Government, sustained the copyright. The court held that the work belonged to the plaintiff, not to the Government, and that the printing of the pamphlet at the Government's expense for Government use did not make it a "Government publication" for purposes of copyright.

The reverse situation was presented in Sawyer v. Crowell Publishing Co.,30 where the plaintiff, a Government employee, directed a subordinate employee to prepare a map of Alaska from material in the Government files. The map was first published privately by the plaintiff with a copyright notice in his name, and was later published in a Government document. In an infringement suit the court, without referring specifically to the question of copyright in a Government publication, sustained the defense that the plaintiff had no property right in the map. Finding that the map had been produced for the Government by its employee in the course of his employment, the court said that any property rights in the map belonged to the Government. On this point the court said:

It is true that the mere fact that one has created or invented something while in the employ of the Government does not transfer to it any interest in it ***. But it is equally true that when an employee creates something in connection with his duties under his employment, the thing created is the property of the employer * *

These two cases seem to point rather clearly to the following conclusions: that a work is not a "Government publication" for purposes of copyright by mere virtue of its printing and publication by the Government; that a work produced privately (including one produced by a Government employee on his own time outside the scope of his employment) 31 is not a "Government publication," even though printed and published by the Government; and that a work produced for the Government by its employee within the scope of his employment belongs to the Government even though first printed and published privately.31 In short, "Government publication" refers to a

29 57 WASH. L.R. 286 (Sup. Ct. D.C. 1929).

30 46 F. Supp. 471 (S.D. N.Y. 1942), aff'd 142 F. 2d 497 (2d Cir. 1944).

31 On the point that a work produced by a Government employee outside the scope of his employment belongs to him and not to the Government, see the recent cases of United States v. First Trust Co. of Saint Paul, 251 F. 2d 686 (8th Cir. 1958), aff'g First Trust Co. of St. Paul v. Minnesota Historical Society, 146 F. Supp. 652 (D. Minn. 1956); and Public Affairs Associates v. Rickover, 177 F. Supp. 601 (D.D.C. 1959), rev'd. on other grounds, 284 F. 2d 262 (D.C. Cir. 1960). See also 7 DECS. COMP. GEN. 221 (1927); 22 DECS. COMP. GEN. 715 (1943).

3la Cf. 3 DECS. COMP. GEN. 645 (1924); 7 DECS. COMP. GEN. 221 (1927).

published work produced by the Government, and perhaps to one owned by it, not to the mere act of printing and publishing by the Government.

This result is further indicated by the saving clause in section 7 of the Copyright Act of 1909 (now section 8 of title 17 U.S.C.) which reads:

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.

The committee report on the bill that became the Act of 1909 explains that this 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.32

It might be argued that the fact that this saving clause was deemed necessary indicates that "Government publication" would otherwise include all material published by the Government.

III. DEVELOPMENTS SINCE 1909

A. EXPANSION OF GOVERNMENT PUBLISHING

In 1895, and still in 1909, the publishing activities of the Government were comparatively limited in volume and scope. In large measure its publications then consisted of laws, rulings, official proceedings and pronouncements, etc.-the kinds of documents that the courts had previously held not copyrightable under the common law on grounds of public policy. Since that time the research and informational activities of the Government, particularly in the fields of science and technology, and its production and publication of research reports and other general informational material have grown substantially. Insofar as the statutory prohibition of copyright in Government publications is based on the earlier common law rule, therefore, it may need to be reexamined in the light of the more recent development of the Government's research and publishing activities.

B. EXPERIENCE IN PRACTICE

Some Government agencies have encountered practical problems arising from the copyright prohibition. These have been due in part to the prohibition itself and in part to the uncertainty as to the scope of the term "Government publication" to which the prohibition applies.

One such problem arises in connection with contracts under which private organizations conduct research for the Government at the Government's expense: what is the copyright status of research reports prepared by the contractor for the use of the Government? Some agencies have taken the position that the contractor may be

32 H.R. REP. NO. 2222, 60th Cong., 2d Sess. 10 (1909). On at least two occasions between 1895 and 1909 Congress had passed special acts to preserve the copyright in private works that were to be incorporated in Government documents: 32 Stat. 746 (1902) and 34 Stat. 836 (1906).

permitted to secure copyright in such reports, with the agency being given a non-exclusive royalty-free license to use and publish them.

As shown by registrations in the Copyright Office, copyright has been claimed in a substantial number of works (chiefly historical, instructional, or technical materials) which were prepared by employees of a Government agency or of a quasi-governmental organization and were used or published by the agency or organization. In some of these cases the Government agency presented or supported the application for registration of a copyright claim by the employee. The employee was said to have prepared the work outside of his official duties or on behalf of an organization operating with non-appropriated funds (such as a military service school, officers' association, or Army post exchange), or copyright was said to be justified by the publication of the work at the expense of such an organization or of a private publisher. In some instances the copyrights claimed have been assigned to the Government.

During the 1930's the question arose as to copyrighting the works of authors employed in the Federal Writers' Project of the Works Progress Administration. This was an unemployment relief project in which the writers were paid out of public funds. Their works were turned over to various public and private organizations to sponsor their publication; some were published privately and some by the Government. Copyright was claimed in many of those published privately, usually by a committee of sponsors; and royalties in excess of the sponsors' expenses were turned in to the United States Treasury 34

Beginning in the 1930's and during World War II, the practice grew of having scientific and technical works produced by or for the Government published in private journals. Thus, in a 1938 report the National Resources Committee said:

35

The general inadequacy of publication funds and the delays incident to Government printing have led in many cases to the selection of second choice media for the publication of scientific articles ***. [T]o an increasing extent important findings are released through technical societies and nongovernmental scientific journals. The Bureau of Chemistry and Soils is speaking for governmental research agencies when it reports that "most of the technical papers prepared in the Bureau appear in outside publications."

In 1943 the Director of the Bureau of the Budget recommended this procedure to the executive departments:

36

Information developed through research and investigations should be made available, whenever feasible, to nongovernmental publications, especially to technical journals, to avoid the expense of printing and distributing a Government publication.

Many of the private journals in which material supplied by the Government was published no doubt contained copyright notices purporting to cover such material. To some unknown extent this practice of having such material published in copyrighted private journals presumably continues.

33 See, for example, the regulations of the Department of Defense, 32 CFR, 1958 Supp., 9.202-5. An earlier regulation of that Department had provided further that in some cases the contractor might be required to secure copyright and assign it to the Government: 32 CFR 9.203 (1954).

See 135 The Publishers' Weekly 1134 (1939).

35 I United States National Resources Committee, Science Committee, Research—A National Resource 39 (1938).

Budget Circular No. A-16, Aug. 1, 1943, quoted in United States War Production Board, Report on the Reproduction and Distribution of Printed Matter for Executive Agencies 26 (1944).

Instances are also known in which Government agencies have had works produced or owned by them published by private book publishers, with a copyright notice in the name of the publisher. In some instances private publication may be preferred over publication through Government facilities for several reasons: private publication may be more expeditious, it may provide an edition of higher quality, the private publisher may cover the market more effectively, andperhaps most important the private publisher will bear the cost of printing and distribution. The last has been said to be the principal reason why the States have wanted their works to be copyrightable. Private publishers may be unwilling to assume the cost of printing and distribution, however, unless they can be given the exclusive rights afforded by copyright.

C. LEGISLATIVE PROPOSALS SINCE 1909

Between 1918 and 1921 a series of bills 37 was introduced to permit the Government to secure copyright for "any Government document or work" by placing a notice of copyright on the published copies. The bills further provided that such copyrights could thereafter be released by inserting a notice of the release on any copy. What prompted these bills is not known. No action was taken on any of them.38

The various bills introduced between 1924 and 1940 to revise the Copyright Law of 1909 all retained the prohibition of copyright in "any publication of the United States Government", except that the Thomas (Shotwell) bill 39 referred instead to "any work of the United States Government." The prohibition does not appear to have been discussed in the legislative proceedings on any of these bills.

A series of bills 40 introduced between 1913 and 1919 to revise the Printing Law, while leaving intact the prohibition of copyright in Government publications, proposed to deal with a related problem. They would have required private persons who reproduce Government publications to insert in the reproductions a statement that they were not published by the Government, and would have prohibited the use of the Government Printing Office imprint and the insertion of any advertising matter in such reproductions. None of these bills was enacted.

In addition to the private use of Government publications for advertising purposes, instances have occurred in which Government publications have been reproduced and sold at high prices without

37 S. 3983, 65th Cong., 2d Sess. (1918); S. 579, 66th Cong., 1st Sess. (1919); S. 637, 67th Cong., 1st Sess. (1921). 38 In 1938 an act was passed authorizing the Postmaster General to secure copyright on behalf of the United States in philatelic catalogs to be prepared by him from time to time: 52 Stat. 6, 39 U.S.C. § 371. That act is referred to in 17 U.S.C. § 8. By a series of joint resolutions Congress has authorized Representative Cannon to secure copyright in the successive editions of Cannon's Procedure in the House of Representatives printed by the Government: e.g., 62 Stat. 1052 (1948); 73 Stat. 20 (1959). Other bills not enacted have proposed to authorize Government copyrights in particular works: e.g., H.R. J. RES. 467, 75th Cong., 1st Sess. (1937) (The Story of the Constitution by Representative Bloom); H.R. 1331, 81st Cong., 1st Sess. (1949) (illustrated history of U.S. coins and currency proposed for preparation by the Treasury Department); H.R. 5541, 85th Cong., 1st Sess. (1957) (official dictionary to be prepared by a proposed Government Commission).

S. 3043, 76th Cong., 3d Sess. § 11 (1940). Some of the revision bills proposed minor changes in the language of the saving clause, e.g., the Vestal bill, H.R. 12549, 71st Cong., 3d Sess., § 7 (1931); the Sirovich bill, H.R. 12425, 72d Cong., 1st Sess., § 5 (1932).

40 Bills cited at note 22 supra.

41 The committee reports on these bills, e.g., 8. REP. NO. 183, 64th Cong., 1st Sess. (Dec. 7, 1915), commented on "the pernicious practice * of reprinting Government publications ** by private concerns for advertising purposes. A presumption might very well arise in the minds of the public that the reprinted bulletin was issued by the Government and carried with it an endorsement of the company named and the implements advertised for sale by it. It is highly desirable that such practices should be prohibited."