Notes on 17 U.S.C. § 105 : US Code - Notes

    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546.)

                       HISTORICAL AND REVISION NOTES                   

                         HOUSE REPORT NO. 94-1476                     
      Scope of the Prohibition. The basic premise of section 105 of the
    bill is the same as that of section 8 of the present law [section 8
    of former title 17] - that works produced for the U.S. Government
    by its officers and employees should not be subject to copyright.
    The provision applies the principle equally to unpublished and
    published works.
      The general prohibition against copyright in section 105 applies
    to "any work of the United States Government," which is defined in
    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 this definition a Government official or employee would not
    be prevented from securing copyright in a work written at that
    person's own volition and outside his or her duties, even though
    the subject matter involves the Government work or professional
    field of the official or employee. Although the wording of the
    definition of "work of the United States Government" differs
    somewhat from that of the definition of "work made for hire," the
    concepts are intended to be construed in the same way.
      A more difficult and far-reaching problem is whether the
    definition should be broadened to prohibit copyright in works
    prepared under U.S. Government contract or grant. As the bill is
    written, the Government agency concerned could determine in each
    case whether to allow an independent contractor or grantee, to
    secure copyright in works prepared in whole or in part with the use
    of Government funds. The argument that has been made against
    allowing copyright in this situation is that the public should not
    be required to pay a "double subsidy," and that it is inconsistent
    to prohibit copyright in works by Government employees while
    permitting private copyrights in a growing body of works created by
    persons who are paid with Government funds. Those arguing in favor
    of potential copyright protection have stressed the importance of
    copyright as an incentive to creation and dissemination in this
    situation, and the basically different policy considerations,
    applicable to works written by Government employees and those
    applicable to works prepared by private organizations with the use
    of Federal funds.
      The bill deliberately avoids making any sort of outright,
    unqualified prohibition against copyright in works prepared under
    Government contract or grant. There may well be cases where it
    would be in the public interest to deny copyright in the writings
    generated by Government research contracts and the like; it can be
    assumed that, where a Government agency commissions a work for its
    own use merely as an alternative to having one of its own employees
    prepare the work, the right to secure a private copyright would be
    withheld. However, there are almost certainly many other cases
    where the denial of copyright protection would be unfair or would
    hamper the production and publication of important works. Where,
    under the particular circumstances, Congress or the agency involved
    finds that the need to have a work freely available outweighs the
    need of the private author to secure copyright, the problem can be
    dealt with by specific legislation, agency regulations, or
    contractual restrictions.
      The prohibition on copyright protection for United States
    Government works is not intended to have any effect on protection
    of these works abroad. Works of the governments of most other
    countries are copyrighted. There are no valid policy reasons for
    denying such protection to United States Government works in
    foreign countries, or for precluding the Government from making
    licenses for the use of its works abroad.
      The effect of section 105 is intended to place all works of the
    United States Government, published or unpublished, in the public
    domain. This means that the individual Government official or
    employee who wrote the work could not secure copyright in it or
    restrain its dissemination by the Government or anyone else, but it
    also means that, as far as the copyright law is concerned, the
    Government could not restrain the employee or official from
    disseminating the work if he or she chooses to do so. The use of
    the term "work of the United States Government" does not mean that
    a work falling within the definition of that term is the property
    of the U.S. Government.

      At the House hearings in 1975 the U.S. Department of Commerce
    called attention to its National Technical Information Service
    (NTIS), which has a statutory mandate, under Chapter 23 [Sec. 1151
    et seq.] of Title 15 of the U.S. Code, to operate a clearinghouse
    for the collection and dissemination of scientific, technical and
    engineering information. Under its statute, NTIS is required to be
    as self-sustaining as possible, and not to force the general public
    to bear publishing costs that are for private benefit. The
    Department urged an amendment to section 105 that would allow it to
    secure copyright in NTIS publications both in the United States and
    abroad, noting that a precedent exists in the Standard Reference
    Data Act (15 U.S.C. Sec. 290(e) [Sec. 290e]).
      In response to this request the Committee adopted a limited
    exception to the general prohibition in section 105, permitting the
    Secretary of Commerce to "secure copyright for a limited term not
    to exceed five years, on behalf of the United States as author or
    copyright owner" in any NTIS publication disseminated pursuant to
    15 U.S.C. Chapter 23 [Sec. 1151 et seq.]. In order to "secure
    copyright" in a work under this amendment the Secretary would be
    required to publish the work with a copyright notice, and the five-
    year term would begin upon the date of first publication.
      Proposed Saving Clause. Section 8 of the statute now in effect
    [section 8 of former title 17] includes a saving clause intended to
    make clear that the copyright protection of a private work is not
    affected if the work is published by the Government. This provision
    serves a real purpose in the present law because of the ambiguity
    of the undefined term "any publication of the United States
    Government." Section 105 of the bill, however, uses the operative
    term "work of the United States Government" and defines it in such
    a way that privately written works are clearly excluded from the
    prohibition; accordingly, a saving clause becomes superfluous.
      Retention of a saving clause has been urged on the ground that
    the present statutory provision is frequently cited, and that
    having the provision expressly stated in the law would avoid
    questions and explanations. The committee here observes: (1) there
    is nothing in section 105 that would relieve the Government of its
    obligation to secure permission in order to publish a copyrighted
    work; and (2) publication or other use by the Government of a
    private work would not affect its copyright protection in any way.
    The question of use of copyrighted material in documents published
    by the Congress and its Committees is discussed below in connection
    with section 107.
      Works of the United States Postal Service. The intent of section
    105 [this section] is to restrict the prohibition against
    Government copyright to works written by employees of the United
    States Government within the scope of their official duties. In
    accordance with the objectives of the Postal Reorganization Act of
    1970 [Pub. L. 91-375, which enacted title 39, Postal Service], this
    section does not apply to works created by employees of the United
    States Postal Service. In addition to enforcing the criminal
    statutes proscribing the forgery or counterfeiting of postage
    stamps, the Postal Service could, if it chooses, use the copyright
    law to prevent the reproduction of postage stamp designs for
    private or commercial non-postal services (for example, in
    philatelic publications and catalogs, in general advertising, in
    art reproductions, in textile designs, and so forth). However, any
    copyright claimed by the Postal Service in its works, including
    postage stamp designs, would be subject to the same conditions,
    formalities, and time limits as other copyrightable works.