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Ted –

You might find the following helpful, especially for the questions about U.S. Government and joint-copyright questions:

Frequently Asked Questions About Copyright: Issues Affecting the U.S. Government
CENDI/2008-1, October 8, 2008
https://cendi.gov/publications/04-8copyright.html
PDF file for printing: https://cendi.gov/publications/04-8copyright.pdf

Richard Huffine | Chief, Library and Public Information Services
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Phone: 202-898-6743 | Email: [log in to unmask]<mailto:[log in to unmask]>

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From: Federal Librarians Discussion List <[log in to unmask]> On Behalf Of Jayasuriya, Betsy (JMD)
Sent: Friday, October 25, 2019 10:53 AM
To: [log in to unmask]
Subject: [EXTERNAL MESSAGE] Re: [FEDLIB] [EXTERNAL] [FEDLIB] Does your federal library have a copyright policy?

Thank you, Ted—I think you just provided us our next 3 months worth of conversations.

Betsy Jayasuriya
U.S. Department of Justice Libraries
p 202-514-7767
c 202-532-3482

From: Federal Librarians Discussion List <[log in to unmask]<mailto:[log in to unmask]>> On Behalf Of McClure, Edward -Ted-
Sent: Thursday, October 24, 2019 6:35 PM
To: [log in to unmask]<mailto:[log in to unmask]>
Subject: Re: [FEDLIB] [EXTERNAL] [FEDLIB] Does your federal library have a copyright policy?

No, because so many questions remain unanswered and nobody above us with any authority (including the Library of Congress Copyright Office) appears willing to even propose answers. For example,

General copyright questions.
* Under the joint authorship rule of copyright, may a co-creator severally dedicate the jointly created work to the public domain without the consent of the other co-creators? Over the objections of the other co-creators? Without notice to the other co-creators?
* Under the joint authorship rule of copyright, how does one account for profits among the co-creators when one of the co-creators disseminates the work without cost?

Nothing else appearing,
* Does whether a creator has or does not have a federal charter change anything?
* Does whether or not the work is federally funded change anything?

Authority to copy. For a work under copyright where the U.S. Government owns the copyright, who in an agency has the authority to copy? Specifically,
* Who has the authority to licence making one copy? multiple copies? Unlimited copies?
* Who has the authority to post using a Creative Commons license? Does it matter which CC license?
* Who has the authority to post a copy online for public viewing? For government-only viewing?
* Who has the authority to license with permission to further license?
* Who has the authority to place the work in the public domain?
* Can any or all of the above authorities be delegated? To whom? By whom?

Documents with blended federal government/nongovernment authorship
* Does the joint authorship rule of copyright even apply where a federal government employee working within the scope of their official duties is a co-creator?
* Does the work-made-for-hire rule automatically transfer a federal government creator's rights, if any, to the U.S. Government? If so, to whom?
* Can one federal employee be both a government creator (working within the scope of their official duties) and a nongovernment creator (working on their own time) of one unseverable work?

Contract issues.
* As to the existence of a contract, what evidence beyond common law, if any, is needed to prove that a contract exists or existed? To prove that no contract or no superseding contract term in a contract exists or ever existed? On whom is the burden of proof?
* If there is insufficient evidence to prove the existence or nonexistence of a contract, what is the copyright status of the work?
* May we infer from consistent copyright terms included in contracts or permits in the usual course of federal government business that those terms were included in a specific contract or permit that no longer physically exists?

48 CFR 52.227-14(c)(iii)
* To what contracts among creators of a work and the U.S. Government does 48 CFR 52.227-14(c)(iii) apply? From what point in time?
* What contract language is required to supercede 48 CFR 52.227-14(c)(iii)?
* Does 48 CFR 52.227-14(c)(iii) apply to contracts without copyright terms entered into before its effective date?
* If there is sufficient evidence to prove that a contract existed _before_ the effective date of 48 CFR 52.227-14(c)(iii) but there is no evidence of the existence or nonexistence of a copyright term, what determines the copyright status of the work?
* If there is sufficient evidence to prove that a contract existed _after_ the effective date of 48 CFR 52.227-14(c)(iii) but there is no evidence of the existence or nonexistence of a copyright term, what determines the copyright status of the work?
* Does 48 CFR 52.227-14(c)(iii) give the U.S. Government the authority to dedicate a work to the public domain?
* Where the incorporation of a term from the Federal Acquisition Regulation into a class of contracts is by that Regulation the default, does this place the burden of proof on the party claiming that the default term was superseded by a term written in the contract itself?

May we infer from any of the following that something is a government work if:
* One or more but not all of the creators of a work is a federal government employee creating the work as part of their official duties?
* A work was created for a conference where one or more (but not all) of the sponsors was a government agency?
* A work was published by a conference where one or more (but not all) of the sponsors was a government agency?
* The work recites that it was prepared by a non-government creator under contract with a government agency, but other evidence of the contract or evidence of its copyright terms no longer exists?
* No other evidence appearing, the work cites on its face that a federal government employee is its creator?
* The only other evidence appearing being that the subject of the work is consistent with their official duties, the work cites on its face that a federal government employee is its creator?
* The work is published "for" the federal government?
* The work is published "on behalf of" the federal government?
* The creators are unknown but the work recites that it was published by the federal government?
* The status of the known creators as government employees or not is unknown but the work recites that it was published by the federal government?
* No other evidence appearing, the work recites that it was created for the federal government under a contract, but the specific terms of that contract are unknown?

Who has the burden of proof that:
* A creator was a federal government employee?
* A federal government employee creator was working within the scope of their official duties in creating the work?
* In the absence of a written contract placed in evidence, that the terms of a contract or permit provide that the federal government owns, jointly or severally, the copyright in a work?

Questions raised by "People and Places of the Old Kaibab", USFS SW Region CRM Report No. 10. This report includes articles created by several people. On its face it appears to be an official federal government publication.
* One of the creators is described as an employee of the federal government, but his status as an article creator is not stated; may we infer from this that his work was created by him in pursuit of his official duties?
* For another of the creators there is no indication of her status at all. Her work is separable from others. With no direct indication of her employment status within the four corners of the document, may we infer from the cover that she was a government employee creating this in pursuit of her official duties?
* This Report was published in 1990. Does this have any bearing on the above questions?
* Since its publication, this Report has been treated and cataloged as a government document. Copies of the Report and of individual articles within it have been routinely made without concern for copyright. Does this have any bearing on the copyright status of this Report or its contents?

CENDI 2014-2, Section 2.2.1 as it relates to contractors, grantees, Cooperative Research and Development Agreements, and Intergovernmental Personnel Act Assignments. CENDI 2014-2 doesn't actually say if these are government creators or not, but suggests that their contracts or other agreements with the federal government determine the copyright status of their works.
* What is the default status if no written agreement ever existed?
* If a written agreement exists but includes no copyright provision?
* If a written agreement is known to have existed but its terms are unknown? (For example, in the Department of the Interior contracts are destroyed three years after acceptance of the last deliverable.)
* Does this apply to permittees under a written permit?
* Can a permit (a one-party document) even have enforceable copyright terms?

CENDI 2014-2, 2.2.1.5 Members of the public – User-generated content and crowdsourcing
"The hosting organization usually provides criteria on its web site regarding copyright ownership, licensing and usage of any posted content." Is this enforceable? By whom?

CENDI 2014-2, 2.2.1.6 Standards Development Organizations
"... U.S. Government-prepared documents may incorporate or refer to standards developed by Standards Development Organizations (SDOs). “If a voluntary standard is used and published in an agency document, the agency must observe and protect the rights of the copyright holder and any other similar obligations.” OMB Circular A-119. The copyright status of a standard developed by an SDO is unclear under current law when incorporated into an agency document that has the force and effect of law (e.g., a regulation)." What is your policy on this?

CENDI 2014-2, 2.3 What are Joint Works Created by Government Employees and Non-federal Authors
"Whether the U.S. Government can be a joint author with a non-federal author is not directly addressed by the law." (As best I can tell, it's not indirectly addressed either.)
* What is your policy when a government employee co-creates a work with a non-federal creator?
* What is the default if you cannot determine if a government employee co-creator participated pursuant to federal employment or not?

I know how I would answer these questions, but that doesn't help. If we can't get definitive answers, agencies could at least have policies in place. Until these questions have authoritative answers, I suggest that a copyright policy at the individual government library level would be useless or nearly so. I treat every copyright question as sui generis and start from first principles.

<humor>It helps for fair use that you can't get more non-profit than the United States Government.</humor>

Edward M "Ted" McClure, Librarian
Grand Canyon National Park Research Library
PO Box 129 / 20 South Entrance Road
Grand Canyon, AZ 86023-0129
(928) 638-7606
 [Inline image 11]


On Thu, Oct 24, 2019 at 12:58 PM Jayasuriya, Betsy (JMD) <[log in to unmask]<mailto:[log in to unmask]>> wrote:
Does your federal library have a specific library authored policy or guidelines for library staff (particularly, aside from / beyond posting notices on reproduction equipment and abiding by e-resource licensing agreements)? Would you share it? What role does your library take in guiding your patrons on copyright matters?

Thank you!

Betsy Jayasuriya
Chief Librarian | Main Library
U.S. Department of Justice
p 202-514-7767<tel:202-514-7767>
c 202-532-3482<tel:202-532-3482>
f 202-532-3482

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