# Presentation: 529365

## Metadata for Government Rights Management

**Bonnie Klein**
**Program Manager for Copyrighted Information**
**Defense Technical Information Center**
**bklein@dtic.mil/ 703.767.8037**
**Approved for Public Release****U.S.Government Work (17 USC §105)  Not copyrighted in the U.S.**

**Metadata for Government Rights Management**
**Why care?**

**CENDI Copyright Working Group Meeting****March 22, 2004    Government Printing Office**

## Department of Energy 

**Department of Energy **
**Defense Technical Information Center**
**Environmental Protection Agency**
**National Aeronautics and Space Agency**
**National Archives and Records Administration**
**National Library of Agriculture**
**National Library of Education**
**National Library of Medicine**
**National Technical Information Service**
**US Geological Survey/ Biological Resources Division**
**US Government Printing Office**

## CENDI Copyright FAQhttp://www.dtic.mil/cendi/publications/00-3copyright.html

**CENDI Copyright FAQ****http://www.dtic.mil/cendi/publications/00-3copyright.html**

**Notes:**
CENDI is a consortium of STI managers from 9 federal agencies.  These include Commerce (NTIS), Energy, EPA, NASA and the National Libraries of Medicine, Agriculture, and Education, Defense (DTIC), and Interior (USGS-BRD).
I chair the CENDI Copyright Task Group whose members include lawyers from 6 of the agencies.  The FAQ is unique among copyright FAQs because of its government perspective and its operational focus.
There are 63 questions and answers and an extensive reference list which includes a section of links to many federal agency policies on copyright.

## Government Information Management

**E-Government Act of 2002** Public Law 107-34, 17 Dec 2002
- Title II--Federal Management and Promotion of Electronic Government Services.
**OMB Interagency Committee on Government Information (ICGI)**
- Electronic Records Policy Working Group (ERPWG)
- Web Content Standards Working Group
- Taxonomy Working Group

## Real Life Examples

**Collection Digitization Projects**Contracter Librarian at Vandenberg AFB Technical Library is  tasked by her military manager to digitize her entire collection  which includes 32,000 cataloged items plus several thousand uncataloged maps and documents from many government agencies.  She plans to start with DTIC documents.  Are there any copyright restrictions?
**Repurposing**Penn State University, in partnership with Lockheed Martin, is producing a training course under DOD contract about Joint Vision 2020, the Joint Chiefs roadmap for the future structure and integrated operations of DOD.  Penn State wants to incorporate elements of a PPT briefing found on a DTIC website. The work has no notice; can they use it?

## Real Life Examples

**Reuse**A Navy activity wants to republish elements of a DoD product that is hosted on DTIC’s server. The DoD product preface acknowledges publishers & individuals whose materials were used with permission.  However, there is no notice of authorship for the elements that Navy wants to use.  What’s the copyright status?
**Reproduction**DTIC receives a Course Copyright Reprint Permission Request from the National Defense University asking to reproduce for classroom use several documents obtained from DTIC.   All the documents are papers by War College students.  Will DTIC grant permission?

## Real Life Examples

**Republishing**A nonprofit association wants to republish two public release documents obtained from DTIC. One is from NATO Research Technology Organization. The other is a 1972 National Air Intelligence Center translation of a 1950 Russian technical report.  What’s the copyright status?
**Preservation**A DoD contractor prepares a document which includes pre-existing copyrighted materials used with permission. Permissions vary from one author/publisher to the next with the most restrictive being 1 print run of up to 100 copies to be completed by a specified date.  The contractor advises the DoD sponsor not to reproduce or send the document to the DTIC repository.

## Real Life Examples

**Copyright Material Incorporated Into a Government Work**On the advice of the senior editor of the 10 volume Textbook of Military Medicine, DTIC did not scan the paper edition into its repository.  This government work contains some copyrighted material* *(plates, tables, graphs, text).  Permissions vary as noted.  Some only allow  the material to be used in the published paper version; there are no further reproduction or electronic rights. As the editor has time, she is putting the textbooks online.  It’s very labor intensive because she must manually block/cover the copyrighted material so that it does not display and leave a placeholder reference to what appears in the print version.    http://www.bordeninstitute.army.mil/default_index.htm

## Real Life Examples

**  ****U.S. Government Work using copyrighted material**
**Military Dermatology - Textbook of Military Medicine** Chapter 1, p.9 http://www.vnh.org/MilitaryDerm/Ch1.pdf

## US Government WorksUsing copyrighted material

**Assignment (all rights transferred) vs. license (a transfer of less than complete ownership)**
- e.g. to prepare a musical recording you may need:public performance rights, sound recording rights, synchronization rights, mechanical rights
**Platforms/formats**
**Geographic territories**
**Duration**
**Warranties, indemnities**
**1-time only, multiple uses, revisions**

## Real Life Examples

**Citizen Use of Government Information**Two Federally Funded Research and Development Centers (FFRDCs)  notify DTIC that a commercial company has harvested citations (verbatim including abbreviations and typos) and full-text documents from DTIC’s Public Technical Reports database. They are offering the documents for sale via their commercial  website and through Amazon.com.  This infringes the FFRDCs copyrights.  What is DTIC going to do about it?

## Government Information Management

- Information as an asset **OMB Circular A-130 Management of Federal Information Resources**http://www.whitehouse.gov/omb/circulars/a130/a130trans4.html
- created by the organization (employees)
- created for the organization (contractors & grantees)
- for which the organization has stewardship
- Records management**National Archives and Records Administration**  http://www.nara.gov
- guards the legal and financial rights of the government and citizens
- preserves records of archival value for future generations

## U.S. Government Information Public Release Considerations

- What you can share
-  **with the public**
**within government**
**within the agency**
- Depends on
**statutory limitations**
**public release policy**
**intellectual property rights**

## U.S. Government Information Dissemination Factors in priority order

- 1st Factor    Classification
- 2nd Factor   Distribution Limitation
- 3rd Factor    Copyrights
- 4th Factor    Government Rights

## U.S. Government Information Copyright Factor 

- Separate and distinct from other markings
- Applies to unclassified and classified works
- Not a reason for nondisclosure
- External constraint on reproduction and dissemination

## Government InformationCopyright Management

- Who’s the author of the work?
- Who’s the owner of the work?
- Who has what rights to the work?
- Under Copyright Law
- Under Contract Law

## Copyright Basics -- Definition

- Protection provided by law to the authors of “original works of authorship”
- e.g. , Text, images, recordings, photographs, films, software
- Minimum amount of creativity
- Covers published and unpublished works
- Automatic; no registration or notice required since 1989
- Expression only; not ideas, facts, processes
- “Fixed” in a tangible medium
- Now known or later developed from which they can be perceived...either directly or with the aid of a machine or device.

## Copyright BasicsExclusive Bundle of Five Rights 

- Reproduce
- Distribute
- Adapt
- Perform
- Display

## U.S. Government WorksPublic release does not equal public domain 

- Government Info
- Definition
- OMB-A130
-  Title 44 USC §1901
***Broad scope***
**May be copyrighted**
- Contractor/Grantee
- Pre-existing or commercial copyright
- Assignment

- Government Works
- Definition:
- Title 17 USC §101, § 105
***Narrow scope***
**Not copyrighted**
- Public domain in U.S.

**Notes:**
OMB-A130 Management of Federal Information Resources Definitionse. The term "government information" means information created, collected, processed, disseminated, or disposed of by or for the Federal Government. f. The term "government publication" means information which is published as an individual document at government expense, or as required by law. (44 U.S.C. 1901)g. The term "information" means any communication or representation of knowledge such as facts, data, or opinions in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms. 
Generally, contractors and grantees own the copyright in the works they create under a government contract unless there is particular wording in the contract that assigns or transfers it to the Government.   Usually, the Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in most contracted works to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.
Prior copyrighted material may  used with permission or under license and incorporated in government works.  It does not lose its copyright.
The government may retain and registered assigned or transferred copyrights.
Government works are a subset of government information.These are not copyrighted and are in the public domain in the U.S. They are distinct from works created for the U.S. government.  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.  An officer or employee of the United States includes all appointed positions in the three branches of the Federal Government. As defined in Title 5 U.S.C. § 2101, 2105, 2105.

## U.S. Government WorksMyth: Information published by or sponsored by the U.S. Government is public domain

**15% of the products surveyed are not in the public domain, for all or part of the product.*********GPO Report on the Assessment of Electronic Government Information Products**, 1999.  http://www.access.gpo.gov/su_docs/nclisassement/report.html
**The true size of government is growing;****the federal civil service is not the source of growth.*********Fact Sheet on the New True Size of Government** by Paul C. Light, Brookings Institution, Nov 03.  http://www.brookings.edu/gs/cps/light20030905.htm
**1990:  40% federal; 60% contractors/grantees**
**2002:  33% federal; 67% contractors/grantees**** **

## defenselink.milKeyword “Copyright” = 17164 hits

## U.S. Government WorksElement of Copyright Uncertainty

- Government practice is not to provide notice for Government Works
**Unless otherwise stated *****(in absence of a notice),***** assume not copyrighted.**
- Contradicts US Copyright Law
**Pre-Berne (before 1989)****No notice default-- assume not copyrighted.**
**Post-Berne (**_**after 1989**_**)****No notice default -- assume copyrighted!**

**Notes:**
Furthering public misperception, government agencies often advise users that information on their websites is public domain unless otherwise stated; i.e.,  that in absence of a notice, users may assume the information is not copyrighted. This contradicts the Copyright Law as amended in 1989 when the United States joined the Berne Convention.  While use of a copyright notice and registration was once required as a condition of copyright protection in the United States, it is now optional.  Under the old law, if a work was published without a proper notice of copyright, copyright protection for that work was permanently lost.  Now in conformance with the Berne Convention which prohibits formal requirements, copyright automatically “vests in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 USC § 102)  A work is not in the public domain simply because it does not have a copyright notice.  Pre-Berne, it was reasonable and practical for the government not to put a notice of copyright on government works. Post-Berne, this practice leads to confusion and uncertainty.  It’s anybody’s guess.

## DoD IP Guidancehttp://www.acq.osd.mil/ar/doc/intelprop.pdf

- Intellectual Property:
-    Navigating Through
- Commercial Waters,
-  Issues & Solutions When Negotiating
- Intellectual Property With
-  Commercial Companies.
-  Updated  October 2001

**Notes:**
I’ve also recently joined the OUSD-Acquisitions Inititatives Intellectual Property Working Group. Their product includes IP definitions, scenarios and relevant FAR and DFAR clauses to apply in DoD contracting.  Navy is represented by Tom McDonnell from ONR.

All of these are living documents and will change to reflect changes in policies and law.

## Government Contracted WorksData rights matrix

## Government Contracted WorksTypes of data rights 

- Assignment (Special Works)
- Unlimited
- Government Purpose
- Federal Purpose  (Grants)
- Limited
- Restricted
- Specifically Negotiated
- SBIR (Small Business Innovation Research)
- Commercial

## Government Contracted WorksGovernment Rights Notice

**Government Contracted Works****Government Rights Notice**

**Government**
**Rights**

**Contract #**

**Copyright**
**Notice**

**Other**** permitted uses**

**Notes:**
Copyright Notice
Copyright © 1998-2002 The Regents of the University of California. 

                             For All Information
Unless otherwise indicated, this information has been authored by an employee or employees of the University of California, operator of the Los Alamos National Laboratory under Contract No. W-7405-ENG-36 with the U.S. Department of Energy. The U.S. Government has rights to use, reproduce, and distribute this information. The public may copy and use this information without charge, provided that this Notice and any statement of authorship are reproduced on all copies. Neither the Government nor the University makes any warranty, express or implied, or assumes any liability or responsibility for the use of this information.

## Government Contracted WorksAssignment

**Special Works clause**
**Government owns the copyright****Work not in the public domain**
**Notice****© (Year) United States Government as represented by the Secretary of (Department).  All rights reserved.**** **
- Manz, Paul C., et al. "Protecting Government Works: The Copyright Issue. *Acquisition Review Quarterly*. Winter 2002. Defense Acquisition University, Ft. Belvoir, VA.http://www.dau.mil/pubs/arq/2002arq/Manz.pdf

## Government Contracted WorksAssignment

**May not be****reproduced**** except with**** express**** written consent**

**Owned by the US Army**

## Helping the user determine copyright Preparing for Future Digital Rights Management

- Determine author and owner
**at the time of creation or acquisition**
**no later than review for public release**
- Document copyright and government rights
**Notice **
**Terms & Conditions of Use**
- Mark it
**in the front matter of the information/object**
**in its metadata**** **