Government Documents and Public Domain -- What is clearly not covered by copyright

The common understanding of copyright law is rife with folklore and half-truth and some down right false information. From a legal prospective it is no different than any other area of the law, but we don't often discuss personal injury law or products liability in the genealogical community (other than in our non-genealogical lives, whatever that is). One of the areas of copyright law most intentionally and unintentionally misunderstood is that of statutory limitations. The term used by courts when they apply statutes to any situation is that the statutes are "strictly construed" (unless the judge wants to do otherwise, but that is another long book, not a post). When you get right down to it, copyrights are all time limited, that is, they expire. Other publications (works in copyright law) are not covered at all.

The two most common types of works that are not at all covered by copyright law are government documents and works that have passed into the public domain. The definition that applies is in Section 101, Title 17 of the United States Code (USC):

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.

Section 105 reads:

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.

That is not to say that there are not other limitations of the use of government documents, such as security classifications, but government documents are not covered by copyright protection. Remember the definition? The trick here is knowing if a document is a work of the United States government. But as genealogists we need to know that common government documents, like U.S. Census records are not copyrighted. Can a large genealogical database make a copy of the U.S. Census and then claim a copyright because the document is included in their database? Oh, yes, they can claim a copyright all they want. There are no copyright police out there stopping the large companies from putting copyright notices on government documents to scare the unknowing into submission. But their claims are not protected by the law. The real issue is accessibility. There are also issues of copying the parts of the database that may be subject to a claim of copyright. There is even a further issue, raised by the citation experts, about identifying the online database where you copied the information and date you made the copy. I would assume this would help the online database to sue you for copyright infringement if you inadvertently copies some of their copyrighted material.

What about state documents? Can the individual states copyright their documents? Let me mention an exception to the general rule about U.S. government publications, contractors, grantees and certain categories of people who work with the government are not considered government employees for purposes of copyright. Now, back to the states, copyright law applies only to federal government works. State and local governments may and often do claim copyright in their publications. It is their prerogative to set policies that may allow, require, restrict or prohibit claim of copyright on some or all works produced by their government units. See CENDI (Commerce, Energy, NASA, Defense Information) Frequently Asked Questions About Copyright.

Now what is the public domain? Public domain refers to works that are not protected by copyright and are publicly available. They may be used by anyone, anywhere, anytime without permission, license or royalty payment. Works can become part of the public domain either by expiration of the time limit for copyright protection or by usage inconsistent with a copyright claim. It is absolutely not necessary to have a copyright notice to have copyright protection in the United States. If there is a copyright notice, it is important to read the notice as part of a work may be copyrighted and part may not. As a general rule you cannot create a copyright in works from the public domain by incorporating public domain documents or works in your copyrighted document. But here, as in many areas of the law, might makes right. If you get the attention of a large multi-national corporation, do you have the resources (or the will) to fight?

You can see these topics go on and on and so will this post only in later installments. Don't miss my presentation on copyright at RootsTech 2012.