If there is no copyright notice on a government document, should a library assume that it is not copyrighted?

If the work is published by the Government Printing Office, yes. If it is produced by a federal agency, section 105 of the Copyright Act says that the federal government may not own copyright in works it produces. This was an absolute until about 1978, when the National Science Foundation began to offer grants to researchers that permitted the researcher to publish research results and claim personal copyright in that work. Today, some federal agencies contract out various studies and reports and may permit the contractor to hold copyright. For these, one must hope that they contain a notice of copyright. The problem is that notice of copyright is now optional.

As a rule of thumb, if the author of the work is a federal agency itself, or a federal official acting in his official capacity, the work is public domain. The terms of the grant or contract determine whether a government contractor may hold copyright.

A school is in the process of publishing an environmental science lab manual with lesson plans created by teachers from five different school systems working as a consortium under a grant. Teachers used information from the Internet, encyclopedias, and other sources for the manual. (1) Is it possible to copyright the manual with these materials included? (2) What if the school wishes to sell copies of this manual to other schools? (3) Can the school sell the manual if it is not copyrighted? (4) If copies are sold, how should the profits be divided?

(1) Certainly, the school may claim copyright in the manual unless the terms of the grant dictate otherwise.

(2) Whether the manual may be sold really does not depend on whether the school claims copyright in the manual. The real issue is whether including these materials in the manual infringes the copyright of the encyclopedia or materials on the Internet. One would apply the fair use test to make this determination: what is the purpose of the use, what is the nature of the works copied, how much is used, and what effect did this have on the market for the work. (See section 107 of the Copyright Act of 1976.) There is no problem with selling the manual per se. However, uses that may be considered fair use even when there is a commercial advantage may not hold up as fair use if the manual is sold. If the amount used is more than a fair use portion, the school should seek permission if the manual is to be sold.

(3) The manual is protected by copyright whether or not it is registered. The Copyright Act says that copyright subsists from the time an original work of authorship is fixed in a tangible medium of expression. One can certainly sell an uncopyrighted work too, but this work would meet the requirements for copyright.

(4) The group producing the manual may divide the profits in whatever manner it chooses. Profits could be shared equally among the five school systems, or the schools could reach an agreement about how much each institution contributed to the work and develop a different formula for sharing the proceeds. Another alternative is to put any proceeds into a pool to be used to develop future works.

When a university faculty member creates material while employed by the university, who owns the copyright?

The first step in answering this question is to consult the university's copyright ownership policy. In the absence of a policy, generally, faculty members own the copyright in works they create with a few exceptions: (1) Works directed by the institution (e.g., the head of the biology department requires several faculty to collaborate and produce a lab manual for the introductory biology course) are generally owned by the university. (2) Works that made exceptional use of university resources may be owned by the institution, or the faculty member may have to reimburse the school. (3) Works produced by faculty under an external grant or contract are usually owned by the institution, but the external funding authority controls who owns the copyright. If the faculty member has an employment contract that specifies copyrighted works produced by faculty are works made for hire, then, for copyright ownership purposes, the university is the author. Such a contract is outside the norm since the tradition is faculty ownership in higher education.

For staff, the answer is just the opposite. The university normally owns all works produced by a staff member within the scope of employment. So, if a computer programmer develops a program for the university, the institution will own the copyright. Web pages produced by a librarian as a part of the job are owned by the school. Some universities occasionally permit staff ownership of the copyright, but by prior written agreement only.

Why are faculty works treated differently? By tradition, faculty have owned the copyrighted works they produce. Perhaps this was viewed as a reward or to compensate for low salaries. Moreover, few faculty-produced works have generated enough income for universities to have much of an interest. The only exception is online courses a faculty member creates, but often what the university really needs is a "shop right" to use the work within the institution rather than ownership.

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