indicating their origin as Government documents (which were available from the Government at nominal prices or free).

In several cases the Federal Trade Commission has acted to stop some of these practices by cease and desist orders 42 but within a limited range due, perhaps, to its limited jurisdiction.43

IV. COMPARISON WITH OTHER Laws

A. COPYRIGHT IN STATE PUBLICATIONS

The common law rulings before 1895 denying copyright in the text of statutes, court decisions, official rulings and pronouncements, governmental proceedings, etc., are still deemed applicable to such materials emanating from the States and their political subdivisions. But no bar has been imposed on copyright in other publications of the State or local governments.

Most of the States have enacted statutes for the securing of copyright in certain of their publications or in their publications generally. And even in the absence of any statute, almost every State has claimed copyright in some of its publications. A survey by the Copyright Office shows that during the 5-year period 1950 through 1954, about 4,700 copyright claims were registered in the name of a State or a State agency or in the name of an official on behalf of a State." Included are registrations by or for 47 States, ranging from one to 484 registrations for an individual State during that period.

45

As indicated in Little v. Gould, perhaps the principal motivation for the States to secure copyright in their publications is to enable them to give exclusive rights to a private publisher to induce him to print and publish the material at his own expense. The United States Government, with its own facilities for printing and publishing, may ordinarily have little need to procure private publication; but instances have occurred in which agencies of the United States Government wished to arrange for the private publication of material prepared or owned, or compiled and edited, by them. The Federal Government, as well as State Governments, may also have other reasons for wishing to secure copyright in some works. In theory, at least, there seems to be little reason to differentiate between the Federal and State Governments in regard to permitting or prohibiting copyright in their publications.

If the copyright prohibition is to be retained in regard to publications of the Federal Government, no compelling reason is seen to withdraw from the States the privilege they have exercised for many years of securing copyright in some of their publications.

B. FOREIGN LAWS

The laws of foreign countries do not generally contain any blanket prohibition of copyright in the publications of their governments.

42 See 43 F.T.C. 756 (1946) (use for advertising of Government reports of product tests made by the Govern ment for its own confidential use); 46 F.T.C. 1205 (1949) (use for advertising of reports of a Government agency where such use is prohibited by the agency or where such use indicates approval of the advertised product by the agency); 47 F.T.C. 1729 (1951) (private republication of Government publication under a different title and without indicating its source).

See Stiefel, Piracy in High Places-Government Publications and the Copyright Law, 24 GEO. WASH; L. REV. 423, 434 (1956); also in ASCAP COPYRIGHT LAW SYMPOSIUM, No. 8, 3, 17 (1957).

44 Not included is some additional number of State or local government publications not identified as such. 45 Note 6 supra.

Some of them expressly provide for copyright in such publications.46 Some specifically exclude laws, edicts, court decisions, official proceedings, etc., but provide for (or apparently permit) copyright in other government publications.47

It may also be noted that Protocol 2 annexed to the Universal Copyright Convention (to which the United States adheres) provides for copyright protection for "works published for the first time by the United Nations, by the Specialized Agencies in relation therewith, or by the Organization of American States."

49

The policy and practice in the United Kingdom is worthy of special mention. Under the Copyright Act of 1956, all government works are under Crown copyright. A circular issued by the British Treasury on Jan. 9, 1958, restated the policy that had previously been in effect, in substance as follows: (1) Bills and acts of Parliament and other statutory documents, Parliamentary papers, and the reports of Parliamentary debates are normally permitted to be reproduced freely; but reproductions must not purport to be official copies and reproductions from the Parliamentary debates must not be used in connection with advertising. (2) Other government publications, "including many which explain the operation of Acts of Parliament, or make available the results of research, and other activities of departments *** should be widely known; but official publication is the usual channel for this purpose and, subject to the exercise of discretions *** my Lords see no reason why free reproduction should be allowed of this kind of material for commercial purposes. The exercise of Crown copyright is also necessary to protect official material from misuse by unfair or misleading selection, undignified associations, or undesirable use for advertising purposes. The rights of the Crown will therefore normally be enforced for publications in this class, which will bear an indication that Crown copyright is reserved. Acknowledgment of sources and of the permission of the Controller *** should be required, and suitable fees imposed for reproduction * subject always to his discretion to waive or reduce fees in appropriate circumstances ***. The Controller will waive or reduce fees *** for reproductions for professional, technical or scientific purposes where profit is not a primary purpose of reproduction and consideration of reduction or remission of fees will also be given to reproductions in works of scholarship, in the journals of learned societies and similar non-profit-making bodies, for educational purposes, and in other cases where the need for fullest dissemination of official information is paramount and the commercial or other aspects are relatively unimportant."

The Treasury circular also states: "It is the responsibility of a Department which proposes to reproduce privately-owned copyright

48 E.g., The United Kingdom, Copyright Act of 1956, § 39; Australia, Copyright Act 1912-1935, § 8, by reference to the Schedule thereto (U.K. Copyright Act of 1911, § 18); Bolivia, Law of Nov. 13, 1909, Art. 3; Canada, Copyright Act, R.S. 1952, c. 32, § 11; Germany, Act of June 19, 1901, § 3; India, Copyright Act of 1957, § 17(d); Spain, Law of Jan. 10, 1879, Art. 4(1).

47 E.g., Austria, Copyright Act of Apr. 9, 1936 as amended, § 7(1); Belgium, Law on Copyright of March 22, 1886 as amended, Art. 11; Brazil, Law No. 3071 of Jan. 1, 1916, Arts. 662, 665 (IV); Colombia, Law No. 86 of Dec. 26, 1946, Arts. 17, 18; Denmark, Law No. 149 of Apr. 26, 1933, § 8; Finland, Law No. 174 of June 3, 1927, § 3; Italy, Law No. 633 of Apr. 22, 1941, Arts. 5, 11; Mexico, Copyright Law of Dec. 29, 1956, Arts. 18, 20; The Netherlands, Copyright Law approved by Royal Decree of Sept. 23, 1912, Art. 11.

48 Sec. 39. The system of Crown copyright, which existed under § 18 of the U.K. Copyright Act of 1911 and was retained in the Act of 1956, was discussed at some length in the Parliamentary debates on the bill that became the Act of 1956: Debates in House of Commons, Standing Committee B, on the Copyright Bill, July 19 and 24, 1956, pp. 446-470.

49 G.S. 90/2/01, T.C. No. 1/58.

material, either for official use only or for publication, to obtain the permission of the copyright holder. *** When a Department commissions a work from an author, artist or composer, not a Crown servant, who wishes to retain copyright in the work, the Controller ** * should be consulted before any agreement is signed. The Controller should also be consulted before any agreement is concluded by a Department with a private publisher to publish a work which has been prepared under its direction and control and is therefore Crown copyright. It is exceptional for Crown copyright work to be privately published."

C. THE PATENT LAW

The prohibition of copyright in publications of the United States Government stands in contrast with the securing of patents in inventions of Government employees. Under the Patent Law patents in such inventions may be secured by the Government in certain circumstances, or by the employee in other circumstances.50 This is implemented by an Executive Order 51 which provides in substance that (with certain exceptions) the Government shall obtain all rights to inventions made by an employee pursuant to his official duties, and that in other cases the rights shall be left in the employee subject to the reservation of a non-exclusive, irrevocable, royalty-free license

to the Government.52

The ownership of a patent by the Government is not deemed to dedicate the invention to the public.53 Government agencies may grant revocable non-exclusive licenses of their Government-owned patents, but their authority to grant exclusive licenses or to assign the patents has apparently not been resolved,54 and this has been the subject of proposals for curative legislation.55

In the copyright field, the Comptroller General has held that a Government agency may not grant exclusive rights to a private company to make and sell geographical globes reproducing map drawings prepared by the agency.56

V. GOVERNMENT AGENCY VIEWS

The Copyright Office recently made inquiries of a number of Government agencies that carry on extensive publication programs, requesting their views as to (1) whether the prohibition of copyright in Government publications should be retained or modified, and (2) whether and how the term "Government publication" should be defined for this purpose.

See 35 U.S.C. §§ 266, 267. The history and rationale of the rule permitting Government employees to secure patents in their inventions is reviewed in United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933).

1 Executive Order No. 10096, Uniform Government Patent Policy for Inventions by Government Employees, 15 Fed. Reg. 389 (1950).

The Executive Order is supplemented by the regulations of various agencies, e.g., the Defense Agency (32 C.F.R. §§ 9.100-9.112), the Department of the Navy (32 C.F.R. § 739), the Veterans Administration (38 C.F.R. $$ 1.650-1.667), the Department of the Interior (43 C.F.R. §§ 6.5-6.6).

58 See 38 OPS. ATTY. GEN. 425 (1936); 39 OPS. ATT'Y. GEN. 164 (1938).

54 See I REP. ATT'Y. GEN. Investigation of Government Patent Practices and Policies 112 (1947); FORMAN, United States Patent Ownership and Some of its Administrative Implications, 38 J. Pat. Off. Soc. 420-424 (1956). But cf. 40 U.S.C. § 488.

55 See Second Report of the National Patent Planning Commission, H.R. DOC. NO. 22, 79th Cong., 1st Sess. (1945); 27 J. Pat. Off. Soc. 80 (1945); III REP. ATT'Y GEN., Investigation of Government Patent Practices and Policies 198, 202-208 (1947).

The practices of various Government agencies in regard to their acquisition and use of patents or licenses thereunder is currently under study by the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary: see S. REP. NO. 97, 86th Cong., 1st Sess. (1959); Preliminary Reports of that Subcommittee on Patent Practices of the Tennessee Valley Authority and Patent Practices of the National Science Foundation, 85th Cong., 2d Sess. (1959).

56 25 DECS. COMP. GEN. 909 (1946).

Most of the agencies responding indicated that they saw no need to copyright any of their publications. Some of the agencies in this group expressed their opposition to modifying the prohibition for one or more of the following reasons: as a matter of principle, material produced by the Government is public property and should be freely available to the public for reproduction; the widest possible dissemination of information developed by the Government should be encouraged, and dissemination might be inhibited by copyright; no private person or firm should be given the exclusive right to publish material prepared at Government expense; the centralization of the printing and publishing of Government material in the Government Printing Office and the Superintendent of Documents should be maintained; the Government should not seek to exact payment for the private use of its published material; if copyright were made available for Government publications, the agencies would receive many unnecessary requests for permission to reproduce their uncopyrighted publications.

Some of this group, however, stated the assumption that "Government publications" refers only to works prepared for the Government by its employees in the course of their official duties, and indicated that they would favor such a definition in the statute. They would not wish to prohibit contractors from securing copyright in works prepared by them under contracts with the Government (the Government receiving a non-exclusive license to publish and use such works); nor would they wish to preclude the Government from obtaining copyrights by assignment from contractors or other private authors. Some of these agencies also recognized the importance of the saving clause in providing assurance to private owners that they could permit the Government to use their material in its publications without jeopardizing their copyrights.

A few agencies indicated that while there was no need to secure copyright in the vast majority of their publications, there were special cases, such as those referred to in the next paragraph below, in which copyright would be desirable. Like some of the agencies in the first group, they wished to maintain the practices of permitting contractors to secure copyright in works prepared under contract for the use of the Government, and of acquiring copyright ownership in the Government by assignment; at least, therefore, they would wish to have "Government publications" defined narrowly in terms of works prepared for the Government by its employees in the course of their official duties. These agencies also referred to the importance of being able to assure private owners that they could permit the inclusion of their material in publications of the Government without jeopardizing their copyrights.

This latter group of agencies would favor some provision whereby copyright in works prepared for the Government by its employees could be authorized in special cases. They referred to instances such as the following: where private publication, for which copyright is necessary, may be advantageous to the Government as a matter of economy, or to procure distribution to a particular group of interested persons, or to have an edition of special quality published; where copyright may be desirable as a safeguard against the reproduction of Government material in distorted form or in connection with commercial advertising; where a Government agency is given a grant of private funds to produce a work; where works are produced

in a Government research project that seeks to be self-supporting, so that the agency would like to charge a fee for the commercial publication of such works.

VI. ANALYSIS OF ISSUES

A. DEFINITION OF "GOVERNMENT PUBLICATION"

The term "Government publication" in the Printing Law, and the corresponding term "publication of the United States Government" in the Copyright Law, as used in connection with the prohibition of copyright, have proved to be ambiguous. Within the context of the Printing Law, "Government publication" has been construed as including all material published by the Government. From the standpoint of the copyright prohibition this definition seems unsatisfactory since it would include privately owned material when used in a document published by the Government; and it would exclude material produced or owned by the Government if it were published through private channels only.

The saving clause in section 8 of the Copyright Law purports to preserve the copyright of private persons when their material is used in a Government document. Within the context of the Copyright Law, "publication of the United States Government" has been construed as referring only to works produced or owned by the Government, however published.

Moreover, some Government agencies have assumed that the copyright prohibition applies only to works produced by the Government (i.e., produced for the Government by its employees in the course of their official duties), but not to privately produced works in which the Government acquires ownership by gift or purchase. Government agencies have purported to hold copyright by assignment in works so acquired. If the copyright prohibition is based on the principle that all works owned by the Government are public property and should therefore be freely available for use by everyone, it might be argued that the prohibition should extend even to works acquired by the Government, through gift or purchase.

It has also been assumed by some Government agencies that the copyright prohibition does not apply to works prepared for Government use under contracts with the Government; and that copyright in such works may be assigned to and held by the Government. If the copyright prohibition is based on the principle that works produced at Government expense should be public property freely available to everyone, then it might be argued that the prohibition should extend to all works paid for by the Government under contracts.

A definition in the statute of "Government publications" in which copyright is prohibited seems highly desirable. A number of Government agencies would apparently prefer to define that term so as to limit the copyright prohibition to works prepared for the Government by its employees.

B. COPYRIGHT IN WORKS OF THE GOVERNMENT

Some Government agencies (a minority of those responding to the inquiries by the Copyright Office) have indicated a desire to have copyright available, in special cases, for works prepared by or for them in which copyright would otherwise be prohibited. Other