Re: Copyright of Government Sponsored Work

On Fri, Aug 27, 1999, Jerald Gnuschke <jerald.gnuschke[_at_]nokia.com> wrote:
>
> On 26 August 1999, Stephen Fishman <sfish55[_at_]yahoo.com> wrote:
> >
> > On Wed, 25 Aug 1999, Jerald Gnuschke <jerald.gnuschke[_at_]nokia.com> wrote:
> > >
> > > On 18 August 1999, Peter Groves <petergroves[_at_]compuserve.com> wrote:
> > > >
> > > > And what about the position in US copyright law of works of foreign
> > > > governments (eg Crown copyright works)? The question was posed to
> > > > me a while ago and I was unable to come up with one.
> > >
> > > My guess is national treatment applies. No copyright for foreign
> > > national government works but perhaps copyright for the works of
> > > the states of foreign countries.
> >
> > I don't think this is right. Foreign laws and court decisions are
> > likely in the public domain in the U.S., but foreign governments may
> > claim copyright in other works.
>
> 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.

As you point out, section 105 makes copyright protection unavailable for "works of the United States Government" as defined in the Act. It does not make copyright protection unavailable for works of state governments or foreign governments. Reliance on national treatment to deny copyright protection to such works is a stretch. But if another signatory to the Berne Convention allows copyright protection of its government works, a strong argument can be made that it must afford protection to similiar works of the U.S. government, despite the fact that they could not be protected in the U.S.  

James Brennan
<brennandot[_at_]prodigy.net> Received on Sat Aug 28 1999 - 18:24:17 GMT