[Imports] Governments holding copyright (Re: Fargo Stop Signs)

[Kevin Kenny]

On 10/09/2012 08:07 PM, Richard Weait wrote:
> I'm glad that they want the data to propagate but I expect that it is
> not actually public domain.  As I understand it, works only fall into
> the public domain once copyright expires.  The noteworthy exception is
> for a class of US Federal government works[1], which doesn't apply
> here unless City of Fargo is not a federal gov't agency?

Moreover, the US Government can own copyrights that are assigned to it.
It also owns copyright to its works in non-US jurisdictions; only US
copyrights are denied to it. It is also increasingly common for
copyright to vest in some contractor or other, with the US Government
granted (a) an exclusive license, and (b) the title to the copyrights
in the event of bankruptcy or dissolution of the contractor. (How this
differs from the US Government owning the copyright outright, is hard
to say.)

Essentially the only area in which the US Government does not own
the equivalent right-to-exclude that copyright would give it is in its
edicts. The text of laws, executive regulations, judicial decisions,
administrative rulings, and so on is not the subject matter of copyright
by any government, Federal, State or local. This restriction is a matter
of public policy: if citizens are bound to obey the law, they ought not
to have to pay and enter into licenses in order to learn and teach the
laws that they are bound to obey. Event this right is limited. In the
Ninth Circuit, it has been held that incorporating a privately published
standard (American Medical Association case coding) into the law by
reference does not exhaust the copyright holder's interest; the Fifth
Circuit held the opposite with regard to incorporating a privately
published building code (Southern Building Code Congress). The Supreme
Court has not ruled on this circuit split. Moreover, it is not clear
that the idea that citizens have the right to know the laws they must
obey is still good law. Gilmore v Gonzalez
(http://www.papersplease.org/gilmore/index.html) appears to legitimate
the idea that citizens must obey a secret law: surely this is
more offensive than merely requiring that they purchase a copyright
license in order to be informed of a law, so I suspect that in the
Ninth Circuit the case will be precedent overturning the idea that
government edicts are not the subject of copyright.

I would sooner rely on the notion that copyright does not cover an
idea, only the expression of an idea. It does not cover facts, only the
structure, sequence and organization of a compilation of the facts.
Alas, I live in the Second Circuit, which has held that computer
generated tax roll maps - little more than lists of geodetic coordinates
- are creative works, and moreover, that the Freedom of Information Law
does not require the government to do more than make a single copy of
its works available for public inspection at a single location.
(I suspect that the judges of the Second Circuit would be satisfied
if government works were available for public inspection in a disused
lavatory behind an abandoned filing cabinet with a sign on the door
reading 'Beware of the Leopard.')

In short, the idea that taxpayers own works of the government, by
virtue of having paid for them, is a quaint vestige of the last century.
It is no longer safe to assume that anything is out of copyright unless
it bears an unambiguous copyright notice with a date prior to 1923
and there are reliable indicia of provenance that the copy being
used is contemporaneous with the copyright (lest it be a copyrighted
derivative work that bears the copyright notice of the original, and
the copyright holder of the derivative assert rights).

Everything seems to be subject to whatever copyright the richest
publisher chooses to assert. Isn't plutocracy wonderful?

-- 
73 de ke9tv/2, Kevin