plicability of different laws in different foreign countries. However, the military author acting in the performance of official duty in a NATO country is exempted from personal liability under a provision of the NATO Status of Forces Agreement applying to activities in countries ratifying or acceding to this agreement.°

Government publications

From a practical point of view the military author should feel free to use in connection with his official duties any information available to him in publications of the Government unless the material is marked with copyright notice. There are instances where material with a valid privately owned copyright has appeared minus its copyright notice in Government publications. However, no such possibility should be permitted to interfere with the activities of the military author nor impose upon him any burden of investigating whether or not the material is wholly within the public domain.

Section 8 of the copyright law states that "No copyright shall subsist... in any publication of the United States Government, or any reprint, in whole or in part, thereof: ..." However, it also states that "The publication or republication by the Government... of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright..."

In the aforementioned statutes the term "publication" presents some difficulty in interpretation because it might appear to have dual meaning, i.e., either the act of printing and distributing, or the material being published in which the Government has a proprietary interest. One study concludes that the reference to Government publication means a published work produced by the Government, and perhaps to one owned by it, but not to the mere act of printing and publishing by the Government. 13

In the case involving several speeches of

Article VIII, paragraph 5 (g), states: "A member of a force or a civilian component shall not be subject to any procerdings for the enforcement of any judgment given against him in the receiving state in a matter arising from the performance of his official duties."

Vice Admiral Hyman G. Rickover, 14 the Court of Appeals, District of Columbia Circuit, thought the copyright statute should be read "to refer to publications commissioned or printed at the cost and direction of the United States. These would be authorized expositions on matter of governmental interest by governmental authority." In remanding the Rickover case to the District Court, the Supreme Court failed to comment on these quoted interpretations but did criticize an Agreed Statement of Facts drawn between counsel as undetailed and loose, if not ambiguous, and woefully inadequate as a record for adjudicating the issues concerning the rights of the public versus the private copyrights in the speeches of Rickover.

Other cases have dealt with the issue of Government interest in works of Government employees and are in accordance with or at least not inconsistent with the above interpretations. A 1929 case15 sustained the private copyright of a Government employee who was an instructor on military sketching at Fort Leavenworth. He prepared in leisure time, not as an incident of being an instructor, a text for general use including a part on military sketching. His superiors requested and received his permission to print this part as a pamphlet for limited use in instruction at the school. The pamphlet bore notice of copyright and was properly registered at the Copyright Office. The court held the pamphlet not to be a publication of the United States Government.

Interesting, but not too enlightening in points of law, is the case16 concerning the writings of Clark of the famous Lewis and Clark expedition. Both men held commissions for this military venture, Lewis being in charge and directed by President Jefferson to keep an official record. Clark, second in command, kept unofficial notes of a similar nature although he was not under direct order to do so. Clark, at Lewis's request, sent his notes to Jefferson for perusal, and the evidence indicates the latter two considered Clark's journals as private and not of official character. These personal writings were deemed by the court not to be the work product of a Government rep

resentative engaged in the performance of his duties and accordingly not public documents owned by the United States.

The Rickover case undoubtedly will be retried, and any new decision is apt to elaborate on the tests as to the Government versus employee rights in the area of copyright. In this case Admiral Rickover and several Government officials are now joined as codefendants. The plaintiff is a private party seeking free use of Rickover speeches on the basis that they are not properly copyrightable because of the relationship of the subject matter to Rickover's official Governmental responsibilities.

In the aforementioned study, Copyright in Government Publications, it is made clear that even among various Government agencies there are different views as to what is a “Government publication" within the meaning of 17 U.S. Code, Section 8. Even if a narrow definition in terms of works prepared for the Government by its employees in the course of their official duties is attempted under the existing law, there remain some areas within this definition where it seems practical and even desirable that copyrights should be obtainable by or on behalf of an employee.

Private publication of works produced for a Government agency, with copyright notice in the name of the private publisher, may be preferred over publication through Government facilities for several reasons, and there are apparently instances where this is being practiced. Private publication may be more expeditious, it may provide an edition of higher quality, a private publisher may cover a particular market more effectively thereby achieving widest preferred dissemination of information, and the private publisher will bear the cost of printing and distribution. Private publishers may be hesitant to assume such costs, however, unless they can obtain copyright proprietorship. Of course the Government interest in such instances should be protected by retaining or obtaining complete freedom to use or publish, and in some cases sell, the copyrighted material for Government purposes.

It can be argued with considerable merit

that an employee has a right to secure private copyright in a work related to his official responsibilities when the employee has made a substantial or significant contribution to the work on his own time or outside of his official responsibilities. Efforts by an employee outside of his official duties and warranting private copyright may even be in the nature of a revision or reorganization of some official work where there is a recognizable literary or editorial contribution by the employee. Such private copyrights are particularly desirable when the copyrighted work might not otherwise be disseminated to the public. Most such situations can be readily distinguished from the case17 holding that a copyright obtained by a Department of the Interior employee on a map was held in trust for the United States Government since (1) the map was related directly to the employee's work, (2) it was made with materials and information furnished by the Government, (3) it was printed and engraved by a division of the Department of the Interior, and (4) there was no evidence that the preparation of the map was not done on Government time.

copyrightability and use of copyrighted work

Since copyright appears to subsist in some source material, the question arises as to how and in what manner sources may be used without incurring liability to the copyright owner. Two principal categories of source material may be used without copyright liability. They are (1) material which is not copyrightable under the law and (2) material the use of which may be defended by assertion of the "fair use" doctrine. Neither of these categories is well defined, although there are hundreds of cases that tend to serve as guides for definition.

Merely determining that a work bears. proper notice of copyright does not establish that the copyright proprietor enjoys an exclusive right to all parts of the work. Generally the copyright extends to an original manner of expression in the work rather than to the general subject matter treated by the author. The

protection afforded by copyright will not permit an author to withdraw basic ideas or conceptions from use by the public, thus depriving the public of the opportunity of achieving greater intellectual heights or activity in new intellectual areas.

If an author could, by copyrighting his work, withdraw ideas or information from the stock of materials available for other authors, each copyright would restrict literary and artistic development in science, fiction, history, and other areas of literature and the fine arts to the detriment of, rather than to the benefit of, the public.

The Supreme Court has said, concerning the extent of protection under a copyright, "Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express one, or explain and use the other in his own way."18 In this case there was no question but that the defendant had copied from a copyrighted treatise dealing with a system of bookkeeping, but the alleged infringer made a different arrangement of columns and used different headings. The court held here that the copyrighted book on the bookkeeping system was not infringed by a similar book using a similar plan which achieved similar results.

As indicated above, the decisions stress that copyright protection extends only to the manner of expression rather than to the plot, theme, idea, or thought expressed. However, Weil in his Law of Copyright goes a little farther in summarizing the law to be that where "there are truly original thoughts embodied in the work-not merely in the expression of thought, but in the thought so expressed, then copyright exists in such intellectual creation throughout. The scope of copyright is, then, always measured by the extent of, and nature of, the original work embodied in a creation."19

A copyrightable work must be original in that the author creates it by his own skill, labor, and judgment. Even though a work contains noncopyrighted matter dedicated to the public, a copyright thereon is valid as to the new and original matter, and the degree of

protection afforded by copyright is measured by what is actually copyrightable in the publication and not by the entire publication, 20

Whether or not a particular part of a copyrighted work is copyrightable and thus protected is a question of law rather than one of fact. This was pointed out in a recent case21 holding that bold statements of fact in a consumer magazine relating to testing and rating of dishwashers could hardly be stated in any different fashion and that such statements did not have any original literary form which would entitle them to copyright protection. On the other hand, this same case also pointed out that whether the defendant's use was "fair use" and whether there was proper copyright notice on the plaintiff's work were questions of fact.

One notable exception to the concept that mere facts are not copyrightable is found in compilations such as telephone directories, city directories, and similar efforts where there is no original literary technique or unique mode of expression involved. The courts respect the efforts of the author by preventing another from taking unfair advantage of a previous author's work rather than putting forth the same effort to make a similar compilation. If a similar or even identical compilation is made by independent effort, there can be no copyright infringement. 22

Even if a copyrighted text is known to contain data copied from public lists such as those in public files of federal, state, or local governments, there may have been sufficient independent effort on the part of the author in organizing the material, rather than merely copying it verbatim, to warrant protection.

Historical facts are not copyrightable per se, nor are errors or misleading statements appearing as facts in published historical accounts.23 The use of such misinformation has been urged as evidence of infringement of a copyrighted work, but a reader has the right to obtain it and re-express it in his own way.

News has no semblance of any kind to literary property, and the owner of a copyrighted report of a news event may prevent its appropriation, but the public is not to be

deprived of knowledge of the event. Others may develop a similar report, even using as a guide the earlier report. This conserves all interest of public policy, and no burden is imposed on the later user except to make no unearned profit at the expense of the first reporter. In a case involving competing news services, the taking of uncopyrighted news from early editions of a competitor and selling and distributing it without any original investigation or expense was not actionable under the copyright statute but was held to be unfair competition.24 However, the question here was not so much the right of either competitor against the public as the rights of the competitors between themselves. Since the news was published, no right of first publication remained, and for the most part the news releases were not protected by statutory copyright. Therefore the court resorted to tort law of unfair competition to protect the property rights of the parties.

In holding a news account of Germany's submarine fleet in 1917 to be protected by copyright, a court gave the following test to distinguish copyrightable authorship and literary quality and style from noncopyrightable recitals of news or facts. "It reveals a peculiar power of portrayal, and a felicity of wording and phrasing, well calculated to seize and hold the interest of the reader, which is quite beyond and apart from the mere setting forth of the facts. But if the whole of it were considered as stating news or facts, yet the arrangement and manner of statement plainly discloses a distinct flavor and individuality of expression peculiar to authorship, bringing the article clearly within the purview and protection of the Copyright Law."25

Courts will not lend their aid to protect authors of immoral works.26 In determining whether a work is indecent or immoral, some courts have adopted the tests laid down in cases arising under the Postal Statutes27 denv ing mailing privileges to indecent works. Under those statutes the work must be considered as a whole and have a direct tendency to corrupt morals. Mere vulgarity or coarseness of language does not condemn it. 28

Blank forms used in bookkeeping or charts used with mechanical instruments are not intended to communicate facts or ideas and are not copyrightable.29 Articles intended for practical use in cooperation with a machine, mechanical devices used in production, gestures or motions of actors, movements of a dance or a spectacle, and mere arrangement of a musical composition apart from the original composition itself are not copyrightable. The property rights in an arrangement may be recognized, however, if it consists of unique elements which combine to produce a finished product which has a being or distinctive existence of its own.30

To try to elaborate further on copyrightable items is perhaps futile because there is a grave danger of misleading the reader as to the fine line between copyrightable and noncopyrightable material.

fair use

"Fair use" has crept into the law of copyrights from judicial decisions using this term to encompass an indistinct area wherein use of copyrighted material has been deemed to be justifiable without liability on the part of the user notwithstanding that there may have been actual copying. Probably the area of "fair use" will never be set out in the copyright statutes because of the difficulty of putting into words a workable definition having the requisite elasticity.

As a legal concept there are different points of view as to whether "fair use" is really no infringement at all within the spirit and intent of copyright law or whether it is an infringement which is justified and for which there should be no cause of action by a copyright owner. The first view would seem to be preferred, particularly if the military author is involved in any correspondence regarding the use of copyrighted matter to avoid any record which might be evidential as an admission against interest, i.e., correspondence should not contain any statements or implications that a contemplated use appears to be, or may be, an infringement.

As case law has developed, the bounds of this doctrine of "fair use" have continually changed, and the scope of the doctrine has varied depending upon the type of copyrighted works. The doctrine has wider application in the areas of science and education than in the area of the purer artistic creations.

Fair use accounts in part for the fewer law suits concerned with infringement of copyrights in the scientific and technological fields than in other literary fields. Of course it is also recognized that many copyrighted scientific works are published with the primary aim of achieving personal prestige by contributing to public knowledge with full reward by way of professional recognition rather than pecuniary reward by copyright licensing or enforcement. Another factor in minimizing copyright litigation in the technological fields may be the statutory protection afforded by patents. In this latter instance an inventor may obtain his reward by patent licensing and will benefit by unrestricted dissemination of information regarding his invention. Similarly commercial gain by sale of products or services may be enhanced by unrestricted publication of information concerning them.

Because of the desire for professional recognition by authors, military writers should give credit for material taken from another's work, particularly when it is copyrighted. The presentation of any copied matter as original is not "fair use" in the opinion of both literary men and the courts. "The want of acknowledgement or denial of indebtness is a very strong indication of an animus furandi, and excludes the question of fair use, or lawful abridgement.... Mere honest intention on the part of the appropriator will not suffice,... as the court can only look at the result, and not at the intention in the man's mind at the time of doing the act complained of, and he must be presumed to intend all that the publication of his work effects."31

Even though a book contains material which is proper subject for copyright, a part of it may still infringe the copyright of another. Such facts may affect the remedy available against an infringement by a military

author in the case of a private publication that is not a part of his official duties. Depending upon the facts, the severity of an injunction against publication may be assessed, in addition to damages. Of course, no injunction will lie against publication by the Government because of the provisions of 28 U.S. Code 1498.

In 1841 Justice Joseph Story enunciated in the case of Folsom v. Marsh32 several views on copyright law which have been repeatedly quoted and accepted in later legal decisions. This case involved the use of private and official letters of George Washington. The following quotations from the case are helpful guides to any author.

In cases of copyright, it is often exceed. ingly obvious, that the whole substance of one work has been copied from another, with slight omissions and formal differences only, which can be treated as studied evasions; whereas, in other cases the identity of the two works in substance, and the question of piracy, often depend upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of the materials. Thus, for example, no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A fair and bona fide abridgment is not a piracy.

A mere selection, or different arrangement of parts of the original work, so as to bring the work into smaller compass, will not be held to be such an abridgement. There must be real, substantial condensation of the materials, and intellectual labor and judgement bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work.