§ 105. — Subject matter of copyright: United States Government works.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC105]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 105. Subject matter of copyright: United States Government
works
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.
(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applies the principle equally to unpublished and published works.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.
limited exception for national technical information service
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.
Section Referred to in Other Sections
This section is referred to in title 15 section 290e; title 36
section 2114.