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RE: copyright fraud? Works of the U.S. Government

Title 17 USC Sec 105 declares that Works of the U.S. Government, 
defined in Title 17 USC Sec 101 as prepared by Government 
employees or officers on the job, are not copyright protected in 
the U.S.  Foreign copyrights may apply in Berne Convention 
signatory countries that copyright government works such as the 
UK, Canada, Australia, etc.  This clearly sets U.S. Government 
works apart from the common misperception that equates them to 
works in the public domain.


Although, United States Government (USG) works prepared by 
officers and employees of the U.S. Government as part of their 
official duties (17 U.S.C. 101) are not protected by copyright in 
the U.S. (17 USC Sec. 105 ), there may be other intellectual 
property and legal limitations governing the terms and conditions 
of their use.

Privately-created, copyrighted works (e.g. quote, photograph, 
chart, drawing, etc.) incorporated into USG works under license 
or with permission of the copyright owner retain their copyright.

Similarly, contractors and grantees are not considered Government 
employees; generally they hold copyright to works they produce 
for the Government. The Government is granted a worldwide license 
to use, modify, reproduce, release, perform, display or disclose 
these works by or on behalf of the Government; the USG license is 
not always transferrable to the general public. Uses, 
transmission or reproduction of these protected items beyond that 
allowed by fair use http://www.copyright.gov/fls/fl102.html or 
other limitations on exclusive rights (secs. 102-122 
http://www.copyright.gov/title17/92chap1.html )may require 
permission of the copyright owners.

Also note that the 17 USC Sec 105 allows the USG to acquire and 
retain copyrights transferred to it. See "Copyright Alert: Even 
U.S. Government Information May be Protected by Copyright" 
http://www.infotoday.com/searcher/apr09/Klein.shtml published in 
Searcher, April 2009 issue.


Privacy and publicity rights are separate and distinct interests 
from copyrights. Copyright protects the copyright holder's 
property rights in the work. Privacy and publicity rights protect 
the interests of the person(s) who may be the subject(s) of the 
work. Privacy and publicity rights are the subject of state laws 
which vary in what is permitted. Also note that related causes of 
action may be pursued under the federal Lanham Act, 15 U.S.C. 
Sec. 1125 (a), for example, for unauthorized uses of a person's 
identity in order to create a false endorsement.

If a recognizable person appears in a photograph or video 
recording, or the talent (such as a performance or narration) of 
a known individual is included in an audio or video recording, 
use for commercial purposes may infringe on a right of privacy or 
publicity. Permission should be obtained from the recognizable 
person or known individual or the estate of the known individual, 
if deceased. However, if the intended use is primarily for 
educational or informational purposes, e.g., books, newspapers, 
and magazines reporting facts of historical significance, then 
such uses will generally not be considered an infringement of 
personal rights.

18 United States Code, Sec.709, prohibits the intentional 
unauthorized use of USG emblems, insignia, names and trademarks 
to create a misleading impression of affiliation or endorsement 
by the Federal Government.

A trademark is a word, phrase, symbol or design, or a combination 
of words, phrases, symbols or designs, that identifies and 
distinguishes the source of the goods of one party from those of 
others. A service mark is the same as a trademark, except that it 
identifies and distinguishes the source of a service rather than 
a product.

See "Use of Government Personnel Uniform and Insignia in 
Promotional or Advertising Materials" by L. Victorino and K. 
Szeliga at 

Neither the U.S. Government nor its employees endorse or 
recommend any commercial products, processes, or services. 
Reference to or appearance of any specific commercial products, 
processes, or services by trade name, trademark, manufacturer, or 
otherwise, does not constitute or imply its endorsement, 
recommendation, or favoring by the U.S. Government. The views and 
opinions of authors expressed on USG web sites or in materials 
available through download from agencies do not necessarily state 
or reflect those of the U.S. Government and they may not be used 
for advertising or product endorsement purposes.

With respect to materials (e.g., documents, photographs, audio 
recordings, video recordings, tools, data products, or services) 
neither the U.S. Government nor any of its employees or 
contractors make any representations or warranties, express, 
implied, or statutory, as to the validity, accuracy, 
completeness, or fitness for a particular purpose; nor represent 
that use would not infringe privately owned rights; nor assume 
any liability resulting from the use of such materials and shall 
in no way be liable for any costs, expenses, claims, or demands 
arising out of the use of such materials.

* USG does not grant exclusive use rights with respect to USG 
* USG should be acknowledged as the source of its material. Title 
17 USC Sec 403
* It is unlawful to falsely claim copyright or other rights in 
USG material. Title 17 USC Sec 504
* USG material may not be used to state or imply the endorsement 
by USG or by any USG employee of a commercial products, 
processes, or services, or used in any other manner that might 
* Use of USG identifiers which would express or imply such an 
endorsement is strictly prohibited.
* Use of the USG agency name or initials as an identifying symbol 
by organizations other than the agency is strictly prohibited.
* USG does not indemnify nor hold harmless users of USG material, 
nor release such users from copyright infringement.
* USG personnel are not authorized to sign indemnity or hold 
harmless statements, releases from copyright infringement, or 
documents granting exclusive use rights.

Bonnie Klein
Co-Chair, CENDI Copyright Working Group

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu 
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Greg 
Sent: Friday, March 26, 2010 7:40 PM
To: liblicense-l@lists.yale.edu
Subject: Re: copyright fraud?

Thanks to a co-worker, things are a little more clear...

When you go to that Natural Disaster and Exteme Weather 
collection and click on their Terms of Service at the bottom, it 
brings you to the middle of their entire legalese. It starts at 
the Terms of Service and skips the Copyright Notice part. See:

So, in effect, the Copyright Notice part (quoted below) was not 
easily findable (I missed it!); there is no direct link to it 
that I could find.

"Materials available on this website are the property of their 
respective copyright holders. Please see the individualized 
copyright notice that is printed within or appears with each 
document, and read the EBRARY TERMS OF SERVICE for information 
about what you may and may not do with the Materials available on 
this site. All rights not expressly granted herein are reserved 
to the copyright holders."

Everything in the Terms of Service seem to suggest that ebrary 
holds the rights to those works and are restricting their use.

So, they aren't placing a fraudulant copyright notice on the 
work, but instead are limiting reuse of public domain materials 
by contract (their ToS).

Thus, no legal copyfraud, but ethical copyfraud (which, 
fortunately or unfortunately, is perfectly legal).

Thanks to my coworker for the point, I completely missed that 
Copyright Notice piece at the top!

Nevermind the whole paragraph on the first page that starts with: 
"To build this site, we gathered public domain PDF documents from 
government websites..."

I think I was a little quick on the trigger...