What is copyright?

The information listed below is found on government web sites you are welcome to search.

Let's begin with Internet Copyright since so many E-books are now found there.

Copyright and the Internet

Does the Copyright Law apply to materials on the Internet or the Web?

Yes, the Internet is another form of publishing or disseminating information; therefore, copyright applies to Web sites, e-mail messages, Web-based music, etc. Simply because the Internet provides easy access to the information does not mean that the information is in the public domain or is available without limitations. Copyrighted works found on the Internet should be treated the same as copyrighted works found in other media.

Can the published version of a U.S. Government work that has been published in a non-government product be posted on a public Web site?

It depends. If the publisher has made original and creative contributions to the published work, the publisher may have some rights. Check with your General Counsel‘s Office or agency policy. Alternatively, the original manuscript as submitted to the publisher could be posted.

Does fair use apply to the Internet?

Yes, fair use applies to materials and use of works found or placed on the Internet. The same factors will be considered as for fair use in print.

How can I determine what uses can be made of materials found on the Internet?

As in the print environment, it is not necessary for an author to include a copyright statement on the material in order for the work to maintain its copyright protection. However, you may find notices on the home page or on special terms and condition pages that provide for specific uses.

Are copyright notices required on materials on Government Web sites?

It is good practice to provide notice whenever possible, even though it is not required. In addition, there may be disclaimers and use notices that apply to use of the material. Check your Agency policy regarding Web site notices.

Is it a copyright infringement to link from your website to copyrighted material on another?

No. In April, 2000, Federal Judge Harry L. Hupp in his ruling on deep linking in Ticketmaster vs. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 12987 (D. Cal. 2000) states that, "...hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved."

Many organizations encourage links by posting terms and conditions and how-to instructions on their websites, usually under the headings of Copyright, Legal Notices, or About Us. For examples, see the Washington Post44 and the New York Times.45 However, be aware of "other claims" and court rulings which prohibit framing, misuse of trademarks, bypassing advertising, etc.

Does the Digital Millennium Copyright Act (DMCA) of 1998 expand protection of works on the Internet?

Yes, the DMCA (Pub. L. No. 105-304, 112 Stat. 286046) added Chapter 12 to the U.S. Copyright Law.47 The DMCA prohibits any person from circumventing a technological measure that effectively controls access to a work protected under the U.S. Copyright Act, 17 U.S.C. § 1201(a)(1)48.

The Copyright Office will determine whether any classes of works should be subject to exemptions for the prohibitions and will publish lists of such exempt classes. The DMCA also makes it illegal for a person to manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component or part thereof which is primarily designed or produced to circumvent a technological measure that effectively controls access to or unauthorized copying of a work protected by copyright, has only a limited commercially significant purpose or use other than circumvention of such measures, or is marketed for use in circumventing such measures, 17 U.S.C. § 1201(a)(2)49.

In addition the DMCA prohibits, among other actions, the intentional removal or alteration of copyright management information and the knowing addition of false copyright management information if these acts are done with intent to induce, enable, facilitate or conceal a copyright infringement, 17 U.S.C. § 120250. Each prohibition is subject to a number of statutory exceptions.

The DMCA also provides certain limitations on service provider liability with respect to information residing, at direction of a user, on a system or network that the service provider controls or operates, 17 U.S.C. § 51251. However, this ―safe harbor‖ provision may not be necessary for Government agencies qualifying as service providers because they are not liable for contributory copyright infringement (see FAQ Section 5.1.5).

Further, the DMCA creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair. For further discussion, see the U.S. Copyright Office Summary of the DMCA.52

COPYRIGHT GENERAL

Copyright is a form of protection provided by the laws of the United States to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works.

Copyright protection arises automatically once an original work of authorship is fixed in a tangible medium of expression, now known or later developed; e.g., written, filmed, and recorded. It does not require that a copyright notice be placed on the work, that the work be published, or that the work be deposited or registered with the Copyright Office or any other body.

What works are eligible for copyright protection?

Copyright requires an original work of authorship to be fixed in a tangible medium of expression from which it can be perceived either directly or with the aid of a machine or device. Copyright protects the form of expression only and does not extend to the idea or concept underlying the work.
Categories of copyrightable works include literary works such as:
1) educational materials
2) computer programs
3) musical works
4) dramatic works including any accompanying music
5) pictorial
6)graphic and sculptural works
7) motion pictures
8) audiovisual works
9) sound recordings
10) architectural works.

Can facts, databases and compilations be copyrighted?

Facts cannot be copyrighted. However, the creative selection, coordination and arrangement of information and materials forming a database or compilation may be protected by copyright. Note, however, that the copyright protection only extends to the creative aspect, not to the facts contained in the database or compilation.

What rights does copyright provide?

• A copyright gives the owner of the copyright the exclusive right to do and to authorize others to do the following:
• To authorize others to do the following
• To reproduce the copyrighted work in copies or phonorecords
• To prepare derivative works based upon the copyrighted work
• To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures and other audiovisual works;
• To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work;
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

How long does copyright last?

Under current Copyright Law, the copyright term for works created by individuals on or after January 1, 1978, is the life of the author plus 70 years. For ―works made for hire, the copyright term is 95 years from the date of first publication or 120 years from the date of its creation, whichever is earliest. The copyright term for works created before January 1, 1978, is a complicated determination and may require help from your General Counsel or the Copyright Office.

The current Copyright Law established dates at which Copyright protection for unpublished works expires and those works pass into the public domain. Unpublished works created prior to January 1, 1978, and not published, will pass into the public domain 70 years after the author‘s death or at the end of 2002, whichever is later.

Unpublished works created prior to January 1, 1978, but which are published between then and the end of 2002, will pass into the public domain 70 years after the author‘s death or at the end of 2047, whichever is later. Additionally, all works published before 1923 are now in the public domain.

Is the copyright term extended or changed merely by copying the work to another medium;  e.g., from print to CD-ROM?

No, the term of protection of a work is not affected by the fact that the owner has copied the work to another medium. If, in addition, new information is added, the new information if copyrightable could have its own term of protection.

Limitation on Copyright Protection
Are there any limitations to copyright protection?

Yes, copyright laws establish limitations or exceptions on these exclusive rights. One limitation is the doctrine of ―fair use, which is set forth in 17 USC § 107.36 (See FAQ Section 2.2.2 on Fair Use.) Other limitations include provisions for allowing compulsory licenses, use and copying by libraries, the sale of the work by the owner.

What is “fair use”?

A fair use of a copyrighted work may include the practice of any of the exclusive rights provided by copyright, for example, reproduction for purposes such as criticism comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. The ―fair use limitation found at 17 USC § 107, 37 is not defined in the statute and does not provide a bright line rule for determining what is or is not a fair use. Rather it identifies four factors that should be evaluated on a case-by-case basis in order to determine if a specific use is ―fair. These factors, which should be considered together when determining fair use, are:

1) Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2) Nature of the copyrighted work
3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) Effect of the use upon the potential market for or value of the copyrighted work.

The distinction between ―fair use and infringement can be unclear and is not easily defined. There is no right number of words, lines or notes that qualify as a fair use.

What is 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.

A work may enter the public domain because the term of copyright protection has expired (see FAQ Section 2.1.6), because copyright has been abandoned, or in the U.S. because it is a U.S. Government work and there is no other statutory basis for the Government to restrict its access (see FAQ Section 3.1.5).

A work is not in the public domain simply because it does not have a copyright notice. Additionally, the fact that a privately created work is, with permission, included in a U.S. Government work does not place the private work into the public domain. The user is responsible for determining whether a work is in the public domain.

It is important to read the permissions and copyright notices on U.S. Government publications and Web sites. Many Government agencies follow the practice of providing notice for material that is copyrighted and not for those that are in the public domain.

Can a work that includes works in the public domain be copyrighted?

Yes. However, the copyright protects only the original contributions added by the author.

Does public release, disclosure or dissemination mean the same as public domain?

No, these terms are not synonymous and should not be used interchangeably. Public release, disclosure and dissemination describe the availability of a work. Publicly released, disclosed or disseminated information may be owned and protected by copyright, and therefore, not be in the public domain.

OWNERSHIP OF COPYRIGHT
Who can hold copyright?

Copyright ownership may be held by any person or institution. Typically, the author of a work owns the copyright in the work. However, under the U.S. Copyright Law, for a work made for hire, that is a work prepared by an employee within the scope of employment or a specially ordered or commissioned work, the employer or other person for whom the work was prepared is considered the author.

Can copyright be transferred from the author or owner to another party?

Yes, any and all of the copyright owner‘s exclusive rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights being transferred. Transfer of a right on a nonexclusive basis does not require a written agreement; however, you should check your Agency‘s policy.

No effective transfer of copyright can be made in the U.S. for U.S. Government works because they are not eligible for copyright protection under the U.S. Copyright Law.

How can the owner of a copyrighted work be identified?

If you want to contact the copyright owner regarding use of a copyrighted work, the best place to start is with the work itself. Copyright notices in published works identify the owner at the time the work was published. However, copyright ownership may have changed since publication.

The copyright notice and any permissions are often printed on the back of the title page in books. Most owners will be apparent, particularly for relatively current works. However, identifying the specific owner may be more difficult for journal articles, gray literature and older works. Affiliation of the author may suggest ownership or may help to locate the individual author, but is not in itself definitive. The U.S. Copyright Office provides some suggestions in Copyright Office Circular 22.42

Additionally, Copyright Office records, including registration information and recorded documents, are available through LOCIS (Library of Congress Information System43), or a newer web-based search system. Information, including ownership information, is available for works registered for copyright since January 1, 1978. The information may be searched online by title of the work, author and copyright claimant.

OTHER FORMS OF INTELLECTUAL PROPERTY PROTECTION
Are there other forms of intellectual property protection?

Yes, there are other forms of intellectual property protection including patents and trademarks. Copyright differs from patents and trademarks in both the terms and kind of coverage that is granted. Copyright protects original works of authorship such as literary works, phonorecords, dramatic works, etc.

Patents53 protect new, useful and non-obvious inventions such as processes, machines, manufactures and compositions of matter. Trademarks54 protect words, phrases, symbols or designs, such as logos or names of products or organizations, that identify and distinguish the source of goods or services of one party from those of another.

Each type of intellectual property differs in the subject matter and requirements for protection, the length of time that the protection holds, how it can be transferred, the basis and penalties incurred for infringement of the exclusive rights provided, and the kind of exemptions that are allowed. For more information, contact the U.S. Patent and Trademark Office.55

GOVERNMENT WORKS
What is a U.S. Government work?

A ―work of the United States Government,‖ referred to in this document as a U.S. Government work, is a work prepared by an officer or employee of the United States Government as part of that person‘s official duties. (See 17 USC § 101, Definitions.56)

Contractors, grantees and certain categories of people who work with the government are not considered government employees for purposes of copyright. Also not all government publications and government records are government works (See FAQ Section 1.0, Definitions).

An officer's or employee's official duties are the duties assigned to the individual as a result of employment. Generally, official duties would be described in a position description and include other incidental duties. Official duties do not include work done at a government officer's or employee's own volition, even if the subject matter is government work, so long as the work was not required as part of the individual's official duty. (S.REP. NO. 473, 94th Cong., 2d Sess. 56-57) (1976)

A government official or employee should not be prevented from securing copyright in a work written at his own volition and outside his duties, even though the subject matter involves his government work or his professional field.‖) For further discussion, see Tresansky, John O. Copyright in Government Employee Authored Works.57 30 Cath. L. Rev. 605 (1981).

The following cases give examples of some related issues:
Public Affairs Associates v. Rickover,58 284 F.2d 262, 268 n.20 (D.C. Cir. 1960), vacated on other grounds for insufficient record, 369 U.S. 111 (1962) Herbert. v. United States, 36 Fed. Cl. 299 (Fed. Cl. 1996). The court said: "The specific task need not be individually assigned in order to qualify as part of the official functions of a government employee.

Where a government employee's official functions include research, generally, the employee may lose the right to sue for copyright infringement even where he was not specifically required to perform the work at issue."

IS A U.S. GOVERNMENT WORK PROVIDED COPYRIGHT PROTECTION?

In the United States, U.S. Government works are covered by 17 USC § 105.59 ―Copyright protection … is not available for any work of the United States Government, but the United States is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Exceptions are available for certain works of the National Institute for Standards and Technology (NIST) and the U.S. Postal Service. Copyright protection may be available for U.S. Government works outside the United States (see FAQ Section 3.1.6). When a copyrighted work is transferred to the U.S. Government, the Government becomes the copyright owner and the work retains its copyright protection.

Does 17 USC §10560 apply to works of state and local governments?

No, it 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.

What is the history of the copyright treatment of U.S. Government works?

Ever since 1895, statutory provisions have prohibited the assertion of copyright in any publication of the U.S. Government. The provisions have been only slightly modified since their enactment.

Since U.S. Government works are not protected by copyright in the U.S., are all U.S. Government works publicly available without restriction in the U.S.?

No. The fact that U.S. Government works are not protected under the U.S. Copyright Law does not create a requirement that all U.S. Government works be made publicly available without restriction (See Gellman, Robert M. Twin Evils: Government Copyright and Copyright-like Controls Over Government Information.61 Syracuse Law Review, 999, 1995. ADA394923). See Pfeiffer v. Central Intelligence Agency62, 60 F.3d 861 (D.C. Cir. 1995).

Federal laws and agency policies govern the public release of U.S. Government information. Examples include Executive Order 13292, Classified National Security Information, OMB Circular A-130,63 Management of Federal Information Resources, Department of Defense Directive 5230.9 Clearance of DoD Information for Public Release64, April 9, 1996, ASD (PA) and DOD Instruction 5230.29 Security and Policy Review of DoD Information for Public Release.65 However, while the Government is not required to publicly disseminate all U.S. Government works, the Government does not restrict the use or distribution of most categories of U.S. Government works.

Despite the general policy of free and open information dissemination, there are exceptions based on a number of factors. Certain statutes (see Freedom of Information Act (FOIA) Exemptions66) provide the Government with authority to restrict access to U.S. Government works, for example, for purposes of national security, export control, and the filing of patent applications. U.S. Government works should undergo appropriate security, export control and policy reviews by the releasing agency before being cleared for public availability.

Additionally, for the purposes of specific agreements, such as Cooperative Research and Development Agreements (CRADA‘s67) and NASA Space Act Agreements68, the Government has statutory authority to withhold from public dissemination, including dissemination under FOIA, certain Government produced information for a specified period of time.

Some agencies may have additional statutory authority to impose conditions for use. Reasons include ensuring that copyrighted information contained in the government product is recognized, adhering to agreements with other parties, and maintaining contact with users to ensure maintenance and updating of critical information. For example, see NLM‘s Terms and Conditions for the Visible Human Project69 and the License Agreement for Use of the UMLS® Metathesaurus®.70 Issues related to joint authorship or sponsorship with non-government authors or organizations may also arise.

Does the Government have copyright protection in U.S. Government works in other countries?

Yes, the copyright exclusion for works of the U.S. Government is not intended to have any impact on protection of these works abroad (S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). Therefore, the U.S. Government may obtain protection in other countries depending on the treatment of government works by the national copyright law of the particular country. Copyright is sometimes asserted by U.S. Government agencies outside the United States.

Are Government websites provided copyright protection?

In accordance with 17 USC §10571, works prepared by government employees as part of their official duties are not subject to copyright protection in the U.S. (See FAQ Sections 3.1.1 and 3.1.2). This applies to government employee prepared works posted to government websites and to the government website itself if government employees as part of their official duties prepare it.

However, if a government website is developed or maintained by a contractor, parts of the website authored by the contractor that are subject to copyright protection (i.e., that qualify as copyrightable subject matter) are protected by copyright.

Ownership of the copyright and the respective rights of the Government and the contractor are in accordance with the terms of the contract under which the web site was developed or maintained. Additionally, it is possible that copyrighted works owned by others may be posted to government websites. Copyrighted works that are not owned by the Government should be included on government websites only with permission of the copyright owner and should include an appropriate copyright notice.

U.S. Government Works Included in Non-Government Works

May another publisher or individual republish a U.S. Government work and assert copyright?
A publisher or individual can republish a U.S. Government work, but the publisher or individual cannot legally assert copyright unless the publisher or individual has added original, copyright protected material. In such a case, copyright protection extends only to the original material that has been added by the publisher or individual. (See 17 USC § 40372 regarding copyright notice requirements for works incorporating U.S. Government works.)

Can a U.S. Government work be copyrighted if it is included in conference proceedings with other works that are copyrighted?

No, a U.S. Government work is not protected by copyright in the U.S (see FAQ Section 3.1.2). However, other works in the proceedings may be copyrighted (see FAQ Section 2.1.4). Additionally, the creative aspect of the compilation of materials, e.g., selection, coordination or arrangement, may be protected by copyright.

May the Government reproduce and disseminate U.S. Government works, such as journal articles or conference papers, which have been first published or disseminated by the private sector?

Assuming the article is written by a government employee as part of his or her official duties and the publisher does not add original, copyright protected content, then the government may reproduce and disseminate an exact copy of the published work either in paper or digital form. (Matthew Bender & Co. v. West Publishing Co.,73 158 F.3d 674 (2d Cir. 1998), cert. denied, 119 S. Ct. 2039 (1999)).

Can a U.S. Government work be reused after it has been published in a non-government product?

Yes, U.S. Government works as originally submitted to the publisher (e.g., manuscripts, charts, photographs, etc.) may be reused in another publication.

What are the rules regarding works produced under Government grants and cooperative agreements?

The data rights clauses in grants and cooperative agreements are flexible but generally allow the recipient to assert copyright. For works created under grants and cooperative agreements with colleges, universities, hospitals and non-profit organizations, all federal agencies adhere to the policies of OMB Circular A-110 108 Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations and to OMB Circular A-102,109 Grants and Cooperative Agreements with State and Local Governments when the grantee is a state or local agency such as a state university.

Section 36 of Circular A-110110 provides that a grantee may assert copyright in any work that was developed under the grant or cooperative agreement. The Federal awarding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for federal purposes, and to authorize others to do so. It should be noted that new requirements for providing government access111 to information created from grants and cooperative agreements were passed as part of the 1999 Omnibus Spending Bill.

Agencies may follow other policies with grants and cooperative agreements with commercial firms. The terms of the particular grant or cooperative agreement will specify respective rights of the parties. Which data rights clause is in the grant or cooperative agreement, and its specific language, should be discussed with the Grants Officer or your General Counsel.

Use of Non-Government copyrighted works in a U.S. Government work
Does the U.S. Government have any special rights to use copyrighted material?

No, the U.S. Government can be held liable for violation of the Copyright Laws. Congress has expressly provided that a work protected by the Copyright Laws can be infringed by the United States (28 USC § 1498(b))117.

The exclusive action for such infringement is an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of monetary damages. However, there is no contributory copyright infringement on the part of the Government because it hasn‘t waived sovereign immunity rights. (John C. Boyle, 200 F.3d 1369 (Fed. Cir. 2000)118

While the Government may rely on fair use, the use of materials by the Government is not automatically a fair use. The U.S. Department of Justice, Office of Legal Counsel, has stated in a U.S. Department of Justice opinion119 dated April 30, 1999, that ―while government reproduction of copyrighted material for governmental use would in many contexts be non-infringing because it would be a ‗fair use‘ under 17 USC § 107, there is no ‗per se‘ rule under which such government reproduction of copyrighted material invariably qualifies as a fair use.

Single copy reproduction of portions of a copyrighted work for use solely for official research or related purposes is ordinarily permissible. Additionally, there may be limited exceptions in the case of National Security where the public interest results in a privilege to the Government for use of the copyrighted work without the express consent of the copyright owner. (Key Maps, Inc. v. Pruitt, 470 F. Supp. 33 (S.D. Tex. 1978)) For further discussion, see ―Application of the Copyright Doctrine of Fair Use to the Reproduction of Copyrighted Material for Intelligence Purposes‖ by Major Gary M. Bowen. The Army Lawyer (DA Pam 27-50-332), July 2000.

When copyrighted materials are included in a Government work or a compilation published by the Government, a copyright notice indicating what portions of the work are protected by copyright, and identifying the copyright owner, should be included. (See Copyright Office Circular 1121)

May the U.S. Government use works of foreign governments or international organizations?

Many foreign countries provide copyright protection for works of their government. However, certain types of official works of government bodies, such as statutes and court decisions, are generally not copyrighted. Many foreign governments will consider waiving copyright upon request. International organizations, such as the United Nations and the World Bank, also hold copyright.

However, many of these documents may contain waivers or waivers may be obtained upon request. Depending on the particular agreement, the U.S. Government may have additional rights based on contributing, paying or being a sponsoring member of the organization.

Can copyrighted material be copied for library archival purposes?

Section 108 of the Copyright Act126 addresses library archiving. The Digital Millennium Copyright Act3 amended Sec. 108 to cover both digital and non-digital copies. It permits the creation of three copies only if the library or archives has, after reasonable effort, determined that an unused replacement cannot be obtained at a reasonable price. These copies may not be distributed to the public outside the premises of the library or archive. The material may also be converted to a new format for preservation.

Although, the Sonny Bono Copyright Term Extension Act added 20 years to the term of copyright, it also added section 108(h), allowing libraries and archives to make copies of text works that were no longer being sold and copies of which cannot be obtained at a reasonable price for preservation purposes during the 20-year extension period. Title IV "Preservation of Orphan Works Act‖ contained in the "The Family Entertainment and Copyright Act of 2005‖ amends section 108(i) and 108(h) to now include musical works; pictorial, graphical and sculptural works; and most motion pictures and other audiovisual works.

Do copyright principles apply to materials purchased and licensed by Government libraries?

Federal librarians procure published materials in a variety of formats for the use of federal employees and the public. Generally, federal libraries do not own copyrights in the materials in their collection. In the paper environment, libraries usually purchase copies to add to their collections.

Copyright law, fair use, and the ―first sale doctrine address the rights and responsibilities of the library as purchaser and of its users. However, in the digital environment, while copyright principles apply, the rights of the library and its users are usually negotiated through contractual agreements and licenses. The terms of these agreements usually allow viewing materials and making reasonable copies for personal or agency use, but most specifically forbid substantial or systematic reproduction and systematic supply or distribution to non-authorized users.

Permissions, licenses and releases to use copyrighted works
How can you determine if copyright permission is needed?

Permission is not needed if the work is in the public domain (see FAQ Section 2.2.4), when the use is a fair use (see FAQ Section 2.2.2), or if a license or agreement covers the intended use. Otherwise, permission should be sought.

Is it necessary to get permission to use facts from a copyrighted source?

Permission is not needed for the use of facts, because Copyright Law does not protect facts. However, to the extent that the facts are presented in tables, chart, graphs, or figures that can be copyrighted, permission may be necessary. Although it is always desirable to give attribution to the source, attribution is not a substitute for permission.

What should be considered when getting a license, release or permission?

Reasonable rights should be requested, covering the uses for which the work is intended to be utilized and considering potential uses in the future. Copyright owners generally treat permissions as being more informal than licenses. Permissions are usually royalty-free, so the rights requested should be reasonably narrow.

However, licenses and releases often require a royalty or one-time payment. In all cases, consideration should be given to platforms/formats, geographical or marketing areas, duration, warranties and indemnities for incorrect information, one-time only or multiple uses, and current version versus revisions. The wording should be developed with your Office of General Counsel. However, the final product will be only as comprehensive as the information you have provided to the counsel concerning your intended use of the material.

Many publishers have examples of permissions posted. A sample letter requesting permission is available from the University of Texas.134

Can the Government transfer licenses or permissions?

The ability to transfer permission depends on the original agreement between the copyright owner and the party to which the permission was originally granted. Permission obtained from a copyright owner is not transferable to a third party, unless expressly stated. If a Government agency has obtained a government-wide permission, it may provide the material to other agencies.

Infringement by the Government
What acts constitute a copyright infringement?

Unauthorized use of a copyrighted work is an infringement unless the use is outside the exclusive rights provided by the Copyright Law, or unless the use is covered by one of the limitations on the exclusive right, such as fair use, reproduction by libraries or archives under transfer of particular copies or phonorecords (first sale doctrine)  Once the copyright is registered in the U.S. Copyright Office, the owner of the exclusive rights infringed is entitled to institute an infringement action.

Can a copyright owner sue the Government if the Government or a contractor performing under a government contract, infringes the copyright?

Yes. Title 28 U.S.C. § 1498(b)149 specifies that a copyright owner's exclusive remedy shall be an action against the United States in the U.S. Court of Federal Claims. The suit must be initiated within three years of the act of infringement. The U.S. Government is also liable for infringement by a government contractor if the contractor acted with the authorization or consent of the Government. DOD agencies process administrative claims of copyright infringement in accordance with DFARS Subpart 227.70150.

Does copyrighted material lose its copyright status and protection if it becomes part of a U.S. Government work or is included in a compilation published by the Government?

No, copyrighted material contained in a U.S. Government work does not lose its copyright status and protection. The copyright status of non-government works in a compilation is not affected by the lack of copyright protection of other works in the compilation or by the fact that the U.S. Government publishes the compilation.