By Kevin Smith

It is one of the simplest, yet most frequently misunderstood, provisions of the U.S. copyright law.  Section 105 of Title 17 says that “Copyright protection under this title is not available for any work of the United States government, but the United States government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise.”  A single sentence, but lots of nuance, both because of what it says and what it does not say.  Last week, an important decision from the DC Circuit Court of Appeals again highlights some of the scope for confusion.

The clear point of this provision is that works created by the federal government – created, that is, by federal employees working within the scope of their employment — do not receive any copyright protection.  Such federal works are immediately in the public domain.  But there are some important points that have to be made regarding what this provision does not say:

  • Government works from other countries can be, and usually are, protected by copyright.  Section 105 explicitly rejects such “Crown copyright” for the U.S., but such copyrights are the rule, literally, in most other nations.
  • Government employees can and do hold copyright in works they create that are not part of their employment.  An EPA scientist has no rights in a report she writes as part of her job, even if it includes photographs she took to illustrate that report.  But she is entitled to copyright in her own private photographs, in works of poetry she composes, and in the video she makes of her son’s soccer game.
  • Independent contractors may have created many things that appear to be U.S. government works; such works likely do have copyright and the federal government may hold that copyright.  That glossy brochure you can pick up when you visit the Grand Canyon, for example, might have been created by National Park Rangers (no copyright) or by contractors working for the government (a copyright was likely transferred to the federal government “by assignment… or otherwise”).
  • Works by state and local governments are not precluded from copyright protection.  Judicial opinions from state courts are pretty much universally recognized to be public domain, but the issue of local laws and regulations is very much up in the air.  The State of Oregon, for example, has tried to assert a copyright in, at least, the collection of the Oregon Revised Statutes.  With local regulations, and the thornier issue of privately developed standards that are made part of laws, which is the subject of the case I want to discuss, the situation is even muddier.

Last Tuesday, the Court of Appeals for the District of Columbia ruled in a case that raised a complex issue about copyright and state laws that incorporate, by reference, codes of industrial standards.  The decision is a win for those who seek more openness in government, although the issues remain far from settled.  It also offers a fascinating perspective on the interplay of the Constitution, section 105 of the copyright act, and fair use.

Public Resources is an organization dedicated to making the law and other government resources more widely available.  Many governments use technical standards that are developed privately, on topics ranging from guidelines for tank barge overfill protection to psychological testing, and often even incorporate those standards into the law “by reference.”  So Public Resources decided to make digital copies of a large number of such standards, that have been made part of the law in different jurisdictions, openly available, believing, in line with numerous legal precedents, that the law should be easily accessible to citizens. For doing this, Public Resources was sued by a group of “Standards Developing Organizations,” including the American Psychological Association (APA), the American Society for Testing and Materials (ASTM), and the American Educational Research Association (AERA).  These groups, of course, sell the standards they develop, and having them incorporated into a legal requirement is naturally good for their bottom lines.  The last thing they want is open access for their standards, but that seems to conflict with the principle of citizens’ right to know what the law is.

Public Resources lost its case in the District Court, which issued an injunction to stop the open distribution of the standards.  The case decided last week – American Society for Testing and Materials, et al. v. Public, Inc. – was an appeal from that decision, and the result was that the injunction was vacated and the issue remand for new proceedings in the lower court.  The Court of Appeals frames the question it is facing like this: “whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works.”  The Court also points out how common such incorporation of standards is; they note that the Code of Federal Regulations alone incorporates by reference over 1,200 standards just from the ASTM.

Three points from the ruling stand out for me:

  1. The Court of Appeals uses quite a bit of ink to emphasize that both technical standards and the methods by which they are incorporated into the law vary a great deal.  Standards may simply be referenced in a law or government regulation, or they may clearly be made part of binding law.  A standard might be used to trigger eligibility for a government grant or program or it might establish a “regulatory floor” for an industrial practice.  Because of this level of variation, the Court is quite reluctant to issue a blanket ruling in the case.  Public Resources is seeking a decision saying that once a standard becomes part of a law or government regulation, it loses its copyright, which they think follows from section 105 and the First Amendment.  The standards organizations see it differently, of course, and the Court of Appeals is unwilling to decide this point without a much more detailed record than it has before it.
  2. After this ruling, the existence of a copyright in standards incorporated into the law remains an open question.  Although the Court does not decide it, one of the Judges, in a concurring opinion, takes great pains to point out that there are four ways in which a court could extinguish copyright in such standards, based on the fundamental principle that access to the law cannot be conditioned on the consent of a private party.  The First Amendment, the Due Process clause of the Fifth Amendment, section 102(b) of the copyright law and fair use could all get us there.  Judge Katsas insists that, if fair use does not do the work, he would entertain these other paths.
  3. The entire panel, however, agrees that fair use is the best way to resolve the case without having to wrestle with Constitutional issues.  Although the case is remanded for a decision about fair use for each of the standards at issue, in large part because of the variety already discussed, it puts a pretty heavy thumb on the scale in favor of fair use.  Where the District Court found a commercial and non-transformative purpose for Public Resources’ copying, the Court of Appeals thinks that facilitating public access to the law, especially by a non-profit, can reasonably be considered both non-commercial and transformative.  They find that the standards are largely factual, and that the amount used must be considered in light of the public need being met, especially since “precision is ten-tenths of the law.”  On the issue of market harm, they instruct the lower court to gather evidence about how serious the economic impact of Public Resource’s distribution is.  It would be difficult, in my opinion, for the lower court to rule against fair use in any sort of categorical way, given these instructions.

After this ruling, we can add another gray area to those that surround the apparently simple rule that works of the federal government are in the public domain.  In a real sense, this case is about how and when a privately-created work might become an unprotected product of the government, through the process incorporation into laws and regulations.  It is a fascinating, and, I think, somewhat troubling question.  The Court of Appeals seems mostly confident that fair use can resolve the issue in the particular circumstances it was addressing, but the question will surely come back to nag us in the future.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (2)

  1. I can add one other complication to your first bullet. While U.S. federal government works may be in the public domain in the U.S., they can be protected by copyright abroad. The legislative history of this section is quite clear on the matter:

    “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.”

    Some foreign nations follow the “rule of the shorter term” which would suggest that a work that is in the public domain in the U.S. is also in the public domain in that country. But at least one country has concluded that the “shorter term” must at least meet the minimum term found in the Berne Convention.

    It is one more indication of how copyright has become more complicated than any individual should have to understand.

  2. This is a very pleasant surprise; it’s hard to imagine this happening when Sonny Bono was still alive. Minor typo: is singular.

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