Re: Copyright of Government Sponsored Work

On 8/27/99, Jerald Gnuschke <jerald.gnuschke[_at_]nokia.com> wrote:
>
> Let me start this with a disclaimer: I'm not a specialist in
> copyright law.
>
> HOWEVER, I still believe that my original statement is
> correct. Foreign copyright laws are not enforceable in the US
> except as provided by treaty. The treaty that I believe would
> apply to the situation mentioned by Mr. Groves is the Berne
> Convention. As everyone knows, the Berne Convention guarantees
> national treatment as opposed to the old system of reciprocity.
> So, barring an exception in the Berne Convention, works of a
> foreign national government should get the same protection as
> works of the US government, based on the national treatment
> principle.
>
> I've searched the Berne Convention for such an exception
> and have not found it. In fact, what I found is that the Berne
> Convention explicitly says that works of government are subject
> to national treatment.
>
> Berne Convention, Article 2, 4: It shall be a matter for legislation
> in the countries of the Union to determine the protection to be
> granted to official texts of a legislative, administrative and legal
> nature, and to official translations of such texts.
>
> Section 105 of the '76 Act says "[c]opyright protection under
> this title is not available for any work of the United States
> Government ...". Work of the United States Government is defined
> by Section 101 as "a work prepared by an officer or employee of
> the United States Government as part of that person's official
> duties."
>
> Under national treatment, foreign national governments are
> entitled to no more copyright protection than the US government.
> Therefore, unless there is an exception written into the US
> copyright law, foreign NATIONAL governments have no more copyright
> than the US government. I have not found such an exception written
> into the Copyright Act. It may exist, but my brief review has not
> located it. If anyone on the list sees a flaw in this reasoning,
> please point it out because I too would like to know the answer
> to Mr. Groves' question.

I think that the national treatment principle extends to the procedures and remedies afforded but not necessarily to the determination of protectability. The Article 2 provision you cites suggests to me that the member country is entitled to determine whether or not its official texts are copyrightable, and if they are, the foreign government would be able to enforce that copyright in the U.S.

John Noble
<jnoble[_at_]dgsys.com> Received on Sat Aug 28 1999 - 17:44:18 GMT