agencies have indicated no interest in having copyright available for any of their works, and some of them have expressed opposition to permitting copyright in any Government works. The reasons for the views on each side are outlined above. If copyright in selected works of the Government were made permissible, it seems likely that relatively few such works would be copyrighted. It is assumed that those to be copyrighted would be required to bear a notice of the copyright; the public could use freely the great bulk of Government works which would be published without such a notice. The suggestion has been made that if copyright is to be permitted for selected works of the Government, the general prohibition should remain, but a central Government agency, such as the Congressional Joint Committee on Printing or the Bureau of the Budget, might be authorized to make exceptions so as to permit any agency to copyright particular works. This suggestion is designed to provide a measure of uniformity in the policy of selection by the various agencies, to assure that copyright will be confined to the special cases where it is needed, and to prevent resort to somewhat doubtful procedures where in particular cases the protection of copyright has been sought by Government agencies. If this suggestion were adopted, the same central agency might also be authorized to regulate or permit the granting of exclusive licenses and the disposition of copyrights owned by the Government. Problems have arisen as to the exclusive licensing and disposition of Government-owned patents, and similar problems may arise concerning Government-owned copyrights. It should be recalled in this connection that Government agencies now claim the ownership of some copyrights by assignment to them. C. THE SAVING CLAUSE The preservation of the owner's rights in privately-owned material used in Government publications is considered important, not only in fairness to the owner, but also to enable the Government to secure his consent to its use of the material. Even with the present saving clause in section 8 of the Copyright Law, some agencies have reported difficulties in securing consent because the owners are sometimes fearful that publications of their material by the Government may impair their rights. The present saving clause may be deficient in two respects. First, it refers to the preservation of the "copyright" in "any material in which copyright is subsisting." This may be taken to refer only to copyright secured under the statute. Publication by the Government, with the consent of the owner, of previously unpublished material (not copyrighted under the statute) might be deemed to terminate the owner's literary property rights under the common law; and in the absence of a copyright notice such publication might be thought to throw the material into the public domain. The law should be clarified to preserve the owner's rights in any event. Second, in the absence of notice that a Government publication contains privately-owned material, a person contemplating reproduction of a Government publication cannot be certain of his right to do so, and his reproduction may unwittingly infringe a private owner's rights. It is suggested that the Government, when using privately-owned material in its publications, might be required to insert an appropriate notice of copyright in the name of the owner with reference to such material. The owner of previously unpublished material would thereby secure statutory copyright. D. MISUSE OF GOVERNMENT PUBLICATIONS In the absence of copyright in Government publications, some consideration might be given to the means of preventing their reproduction without indicating the source, or in a distorted form, or in commercial advertising. Legislation to penalize such misuse has been proposed in the past. In a few cases certain misuses of Government publications have been stopped by proceedings before the Federal Trade Commission, and in some other cases a complaint by the agency concerned has been sufficient to persuade the user to discontinue a misuse. Whether these are adequate means of control may be questioned, particularly since the jurisdiction exercised by the Federal Trade Commission may be too limited to deal with some misuses, and the possibility of a cease and desist order by the Commission may be a weak deterrent. It might be argued, however, that possible misuses are so varied, and what constitutes improper uses may be so vague, that a statutory specification of the uses to be prohibited would not be practicable; and that misuses are not made so frequently or so defiantly as to require a penal statute. VII. SUMMARY OF ISSUES 1. Should Government publications in which copyright is prohibited be defined in terms of: (a) Publications issued by the Government, or (b) Published works produced by the Government (i.e., produced for the Government by its employees in the course of their official duties), or (c) Published works owned by the Government (including those produced by it and those acquired by it through assignment)? 2. Should provision be made to authorize the copyrighting of selected Government publications? If so: (a) Should each Government agency determine for itself whether to copyright any of its publications, or should the approval of a central agency (such as the Congressional Joint Committee or the Bureau of the Budget) be required? (b) Should the individual agencies, or a central agency, be authorized to grant exclusive licenses and otherwise dispose of copyrights held by the Government? 3. Should the saving clause be extended to common law literary property rights in previously unpublished works of private owners when published by the Government? Should the Government be required to insert a copyright notice in the name of the owner when publishing privately owned material? 4. Should any provision be made to penalize the reproduction of a Government publication without indicating the source, or in a distorted form, or in commercial advertising? STUDY NO. 34 COPYRIGHT IN TERRITORIES AND POSSESSIONS OF THE UNITED STATES BY BORGE VARMER March 1959 |