Are all U.S. government works in the public domain? The general rule is that works created by federal government employees are in the public domain. Not all government works are, however, in the public domain (read below for details.) You can freely use U.S. government publications and other works that are in the public domain, but you may need permission to use works created by nongovernment employees.
U.S. Government Works: Not All in the Public Domain
The U.S. Copyright Act clearly states that copyright protection in the U.S is not available for any work of the federal government. Such works are in the public domain and may be used freely without obtaining permission or paying a copyright fee. You can even adapt these government works and use them as you wish.
This allows those physically present in the U.S. to use many U.S. government works without obtaining any copyright permissions or paying any copyright fees. Some of these public domain works are pamphlets, documents, maps, and images. However, this general rule pertaining to U.S. government works doesn’t permit you to use all U.S. government works.
To be non-protected or in the public domain, U.S government works must be created by a federal government employee as part of that employee’s official duties. This excludes works created by contractors, freelancers and certain people who work with the U.S. government but who aren’t considered government employees for copyright purposes.
For example, photos by a freelance photographer taken for a government publication are protected by copyright and the U.S. may be the owner of the copyright in those photos (if the photographer assigns the copyright to the government.) Read below for further information on when the U.S. Government owns copyrights.
For a deeper understanding of what it means for a work to be in the public domain, see What is the Public Domain?
Not All U.S. Government Works Are in the Public Domain
Not all government works are freely available for use by the public. In some situations, the U.S. government does own copyright in works.
The U.S. government may obtain copyrights through an assignment, bequest or otherwise. For example, a research paper or drawing created by an independent contractor such as a consultant, writer or artist may be assigned to the U.S. government. When a copyright is transferred or assigned to the U.S. government, the government then is a copyright owner. In these situations, the works are not in the public domain and you need to obtain permission and pay a fee, if requested, prior to using the works.
The fact that certain U.S. government works aren’t protected by copyright doesn’t create a requirement that these works be made publicly available without restriction. Federal laws and agency policies govern the public release of U.S. government information. Although the government doesn’t generally restrict the use or distribution of most types of U.S government works, statutes such as the Freedom of Information Act (FOIA) provide the government with authority to restrict access for such purposes as national security, export control, and files relating to personnel, medical and similar issues.
Works of Joint Authorship
If a government employee and an independent consultant (i.e., nongovernment employee) jointly create a work such as an e-book, there’s an issue as to whether the government may be a co-owner of the copyright in that e-book with the independent contractor. In such a situation, the government may choose to obtain permission from the independent contractor to use and distribute the work, or even go further and obtain an assignment of copyright in the e-book from the independent consultant.
There are situations where federal government employees have and retain copyright protection in their works. For example, an employee who writes a novel in the evenings at home would own the copyright in that novel. An employee who develops a course based on knowledge attained at work would also likely own copyright in that course, unless the development of that course were part of the employee’s work duties in the federal government.
The duties of an employee may be set out in a job description, which may help determine the ownership of work done that’s related to their day job. A government employee pursuing interests beyond their regular employment might consider entering into a simple agreement with their employer-government department, stating something to the effect that they’re creating work outside their job description and that they’re the owner of copyright in that work. Putting this in writing prior to creation of the work provides clarity and helps both sides in any work situation.
Using U.S. Government Works Outside the U.S.
Outside the U.S., the protection of U.S. government works is dependent upon the laws of the country where the work is used. This is due to the national treatment principle in international copyright treaties, which means that you apply the law where the work is being used.
If you’re photocopying a U.S. government document in Canada or Italy, you apply the copyright laws of Canada or Italy. This means that in some situations, an unprotected work in the U.S. will be protected in another country. It also means that a U.S. government department may be approached for copyright clearance in a work that may be freely available in the U.S. but may be protected by copyright in another country.
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