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Copyright Issues

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EPA Policy and Guidance on Posting Copyrighted Material on EPA Web Site

Posting Copyrighted Material on EPA Web Site The policy document identifies the copyright status and the appropriate use of works (including text, sound, graphics, photographs, video, software, etc.) that might be placed on the EPA website and the EPA Intranet, including website EPA cosponsors or co-owns in partnerships.  The guidance document lists the resources and suggested steps for identifying the copyright status and the appropriate use of works (including text, sound, graphics, photographs, video, software, etc.) that might be placed on the EPA website  and the EPA Intranet, including website EPA cosponsors or co-owns in partnerships.

Copyright Issues of Special Interest to EPA Employees

EPA’s Office of General Counsel has written this summary of copyright issues that most often face EPA employees who are uncertain about what to do with copyrighted works that may or may not display copyright notices. However, this summary is not a substitute for professional legal advice. Because copyright law is complex and situation-based, consult EPA’s Office of General Counsel for answers to specific questions.

The Nature of Copyright

Copyright protection is available to the authors of “original works of authorship” including literary, dramatic and musical works as well as computer software. Copyright protection for most works subsists from the time a work is expressed in a fixed and tangible form, even if the work does not carry a copyright notice. The author of a copyrighted work (or the author’s assignee) has the exclusive right to reproduce, distribute, perform or display the copyrighted work, or to prepare derivative works based on the copyrighted work. An author’s copyright protects the author’s expression, but it does not extend to facts or ideas contained in that expression. The duration of copyright protection has changed in recent years, but as a rule of thumb, one should assume a work is copyrighted if it was first published less than 75 years ago.

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Government Works

Section 105 of the Copyright Act (17 U.S.C. §105) reads as follows:

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.

Section 101 of the Copyright Act defines a work of the United States Government as follows:

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.

There can be no U.S. copyright in any work prepared by an EPA employee as part of that employee’s official duties. For example, if a work is the result of either a specific assignment or is of a nature as to be so closely related to that employee’s duties as to be an expected consequence of such duties, there cannot be a U.S. copyright in that work. Accordingly, the Copyright Act cannot be used to restrain dissemination of a work of the United States Government in the United States, by either the work’s author or the government.

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Works of Recipients of Assistance Agreements and Contractors

Works by recipients of EPA assistance agreements and EPA contractors are not defined as “works of the United States Government” under the Copyright Act.

Copyright in works arising from EPA assistance agreements (grants or cooperative agreements) with institutions of higher education, hospitals and other nonprofit organizations is governed by Title 40 Code of Federal Regulations (C.F.R.), §30.36. Copyright in works arising under grants to state, local and Indian tribal governments is governed by 40 C.F.R. §31.34. The copyright provisions governing EPA assistance agreements allow a recipient of a grant or cooperative agreement to copyright a work without approval from EPA. However, the regulations also reserve for the government a royalty-free, non-exclusive, and irrevocable right to reproduce, publish or otherwise use the work for federal purposes, and to authorize others to do so.

Copyright in works arising under EPA contracts is governed by Subpart 27.4 of the Federal Acquisition Regulations (FAR)(48 C.F.R. §§27.400-27.409). FAR Subpart 27.4 provides guidance on the appropriate “Data Rights” clauses to be included in government contracts. FAR Data Rights Clause No. 52.227-14, Rights in Data—General (48 C.F.R. §52.227-14), is found in most EPA research and development contracts. FAR Clause 52.227-14 provides that the contractor may establish copyright in scientific and technical articles based on data first produced in the performance of the contract without approval from EPA. However, the FAR clause does require the approval of the Contracting Officer before a contractor may establish copyright in all other data first produced under a contract.

The FAR Data Rights clauses also specify the license the government retains in works produced under the award. In most cases, if the contractor is permitted to assert copyright to the work, the “contractor grants to the Government, and others acting on its behalf, a paid-up, non-exclusive, irrevocable worldwide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly [the work], by or on behalf of the Government.” 48 C.F.R. §52-227-14(c). For computer software, the government does not have a license to distribute the work to the public. Thus, updating and revising official government reports or copyrighted compilations of data received under EPA contracts is typically within the terms of the government’s copyright license. EPA is also entitled, pursuant to its copyright license, to modify copyrighted materials prepared by EPA contractors. For example, if an EPA Project Officer, in using a copyrighted report, initiates changes that result in a revised final report, such action is consistent with the terms of EPA’s copyright license.

In lieu of the above data rights clause, certain contracts for the production or compilation of data may contain the FAR Clause No. 52.227-17, Rights in Data—Special Works (48 C.F.R. §52,227-17). Under the FAR’s Special Works clause, the contractor agrees not to assert copyright to the work first produced in the performance of the contract without prior written permission of the Contracting Officer. If permission is not granted, the government can obtain copyright by requiring the contractor to formally register for copyright protection and assign the copyright to the government or a designated assignee. Thus, this clause provides a means for the government to obtain copyright in, among other things, compilations of data, including computer software, that is developed under an EPA contract.

Works of individual authors originated while employed by a recipient of an EPA assistance agreement or an EPA contractor are usually the property of the author’s employer. Under Section 201 of the Copyright Act (17 U.S.C. §201), unless the employer and employee have expressly agreed otherwise in a written instrument, an employee’s works are considered “works for hire” and, as such, are considered the property of the employer. The government’s rights to such works are determined by the applicable assistance agreement or contract regulations discussed above.

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Works Co-authored by EPA and Non-EPA Employees

When an EPA employee, as a part of his or her official duties, participates as a co-author of a work, the portions of the work co-authored by the EPA employee are potentially excluded from copyright protection under Section 105 of the Copyright Act (17 U.S.C. §105). Portions of the co-authored work that can be separated from the work of government employees remain copyrightable.

In many cases, a co-authored work will be considered a “joint work” under the Copyright Act. A joint work is one where the authors intend “their contributions to be inseparable or interdependent parts of a unitary whole.” 17 U.S.C. §101. The law is not settled on the issue of the copyright status and ownership of joint works with government employees. Therefore, when an EPA employee participates as a co-author of a joint work with a non-government author, including works arising from contracts or assistance agreements, the EPA author should consult with OGC and give the outside co-author notice of copyright restrictions that might apply.

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Use of Copyrighted Materials

Copyrighted material may not be copied or displayed by EPA, or incorporated in EPA documents unless written permission of the copyright owner has been obtained. Prior use of copyrighted material in another government publication does not constitute permission for EPA to use the same material. Also, bear in mind that the absence of a copyright notice or the unpublished status of a work does not establish that the work has not been copyrighted. When permission to use copyrighted material has been obtained and the material is used in an EPA document, the copyrighted material should be identified by the following statement:

Reprinted from (title of publication, year of first publication) by (name of author) with permission of (name of copyright owner).

The National Technical Information Service (NTIS) requires that copyright release letters accompany publications submitted to it for distribution. The following is an example of a letter giving EPA and NTIS permission to use copyrighted material:

Dear :

Permission is given to the U.S. Environmental Protection Agency (EPA) and to the National Technical Information Service (NTIS) to reproduce and sell the document identified below containing the following copyrighted material: (Describe the material; include the title, page number, number of the table(s) or figure(s), and any other identifying information.) The following copyright acknowledgment will be included: “Reprinted from (title of publication, year of first publication) by (name of author) with permission of (name of copyright owner).” EPA Document: [Identification of the EPA Document]

The EPA author should, within reason, follow any special acknowledgment wording requested by the copyright owner.

The data rights provisions applicable to both assistance agreements and contracts limit the right of the recipient or contractor to incorporate copyrighted materials in the product delivered to EPA. Prior to inclusion of copyrighted material in work product delivered under an EPA assistance agreement or contract, the recipient or contractor must first obtain the copyright owner’s written permission for the government’s use of such material. The recipient or contractor is responsible for all necessary paperwork and any fees related to obtaining permission to use copyrighted materials.

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Fair Use Doctrine

The narrowly-construed doctrine of “fair use” limits a copyright owner’s absolute ownership rights. The contours of the “fair use” doctrine are vague. Section 107 of the Copyright Act (17 U.S.C. §107) instructs that “the fair use of a copyrighted work. for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Although the Copyright Act does not attempt to define “fair use,” the statute includes four factors to be considered by courts making “fair use” determinations. The four factors are as follows:

  1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Under the first factor, courts focus on two primary issues. First, they consider whether the use is a transformative use that adds something to the work (e.g., literary criticism or scholarship) or whether the use is merely a copy offered as a substitute for the original. Second, the courts consider whether the use is for commercial or nonprofit purposes. A nonprofit use for socially beneficial purposes, while not determinative, weighs in favor of a fair use finding.

Under the second factor, courts find the scope of “fair use” is greater with respect to factual works than non-factual works. Under this factor, courts have also found that the scope of fair use is much narrower for high-priced newsletters than for inexpensive mass circulation periodicals such as newspapers.

Under the third factor, courts disfavor the copying of entire articles or publications. Courts consider not only the percentage of the original used but also the importance of the portion used. Use of a portion that is the “heart of a work” is less likely to be considered a “fair use.”

Under the fourth factor, courts are less likely to find “fair use” if widespread practice of the challenged use would adversely affect the market for the copyrighted work.

In making “fair use” determinations, courts are not restricted to the four factors discussed above. In addition, the amount of weight courts assign to each factor varies with the specific circumstances. Accordingly, “fair use” inquiries are highly fact-specific and do not readily admit to bright line generalizations. For further guidance on questions of “fair use,” contact EPA’s Office of General Counsel.

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Computer Software and Data

Commercial computer software is almost always copyrighted. In addition, computer software is generally sold under software license agreements that provide additional limitations on use of the software. As with other categories of copyrighted materials, permission of the software’s copyright owner must be obtained before the software may be copied or otherwise incorporated into an EPA work product. Permission for limited use and copying of computer software may sometimes be found in the software license agreement under which the government purchased the software.

The Internet, local computer networks and computer bulletin boards facilitate the display and copying of copyrighted materials. Display of a copyrighted work on the Internet, a local network or bulletin board infringes the owner’s copyright no less than would mass distribution of hard copies of the same work. In addition, display of copyrighted materials on widely accessible computer networks and bulletin boards could subject the government to unforeseen copyright infringement liability. Thus, copyrighted materials should not be displayed on the Internet, computer networks or bulletin boards unless the copyright owner has given EPA written permission for such display.

Additional Information

For all questions regarding the law of copyright, you should contact the Office of General Counsel, General Law Office, at (202) 564-5451.

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