United States Code/Title 17/Chapter 1/Section 105
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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.
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(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546.)
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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The provision applies the principle equally to unpublished and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.
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SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 15 section 290e; title 36
section 2114.