It is far from clear that the official writings of Obama are in the public domain. It is true that "Section 105 of US copyright law makes it quite explicit that 'any work of the United States Government" cannot be covered by copyright." But the definition of a "work of the United States Government" found in Section 101 amplifies that these works are by "an officer or employee of the United States Government." The president is not an officer; under the Appointments clause of the Constitution he has the authority to appoint officers of the US government, hence cannot be one himself. As head of state, he is probably not an employee of the government.
The assumption through most of US history since Justice Story's opinion in Folsom v. Marsh has been that the president owned both the copyright and the physical property in his papers. The Presidential Records Act transferred physical ownership of the papers to the US government, but it is silent as to copyright.
In short, an argument could be made that Obama does own the copyright in his presidential writings.
I've yet to see a single lawyer I know have anything positive to say about the ruling or the gag order
Eugene Volokh makes as strong an argument as can be made for the decision. If you are willing to concede that musicians can have a copyright in their performance of a song, then by analogy an actor should be able to have a copyright in her performance.
Words do matter. Masnick wrote that the UK law will be "retroactively pulling works out of the public domain." It may retroactively change the copyright incentive bargain in a way that delays the entry of works into the public domain. And it may prevent works from entering the public domain. But nothing that was already in the public domain has been retroactively pulled out of the public domain.
143 comments, and not one of them points out that Mr. Masnick is wrong in his post. The UK change does not pull anything from the public domain; it instead prevents material from entering the public domain.
"The extension of the term of protection applies only to those sound recordings that were in copyright on 1 November 2013 and to any sound recordings made after that date. The Regulations do not have the effect of bringing back into copyright those sound recordings where copyright has expired."
In spite of what Mr. Masnick says, no works were "pulled out of the public domain." The law does have the effect of delaying when works may enter the public domain, which is unfortunate. And Mr. Masnick's argument that it makes no sense to retroactively change the copyright agreement makes sense. But the public domain is the same size today that it was prior to the passage of the law.
US government works are in then public domain in the US, but can be protected by copyright outside of the US. Here is the text from the House Report on this section:
The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.
How this would play out under UK law is an interesting question. The UK normally follows the "rule of the shorter term," so that if something enters the public domain in the US, it is also in the public domain in the UK. But I don't know what would happen if an object is in the public domain for reasons other than expiration of term.
A colleague in the UK wondered whether Singer bothered to check about copyright ownership. A large proportion of Churchill?s more memorable pronouncements were made in his roles as a minister of the Crown, notably as Prime Minister, and are thus Crown copyright, not copyright of the family. Singer could quote them as extensively as he liked under the Open Government Licence and some would probably be out of copyright altogether as published Crown works.
Of course, this would imply that the estate was trying to claim copyright were none exists. Who would believe that a rights holder might try to overreach on the extent of its rights?
The performance by the Marine Corps band would be in the PD, as per Section 105, as Mike points out. We don't know who made the recording, though. It could be that Beyonce and/or the government brought in an outside recording engineer. We would need to know the terms of the employment contract for the music. And we don't know who wrote this arrangement of the Star Spangled Banner. It would have its own copyright, unless it was crafted by a federal employee.
Unfortunately an FOIA request for the backing tracks would likely say nothing about copyright status of the work.
"...unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending./blockquote>
This section is why there are not CD-rental stores in this country but there are DVD-rental stores.
The key question is whether loaning a CD to a friend represents "direct or indirect commercial advantage." Some courts have suggested that avoiding purchasing something is indirect commercial advantage. The fact that the next sentence in the section explicitly authorizes library lending of CDs, something that one would think would not be considered to be "direct or indirect commercial advantage," might lead one to conclude that "indirect commercial advantage" should be read broadly and could exclude some loans to friends.
I would hope that the courts would conclude that loaning a CD to a friend was not an infringing act, but as far as I know, there has been no case law on the matter.
Average_joe: prior to 1978, you sense would have been right. Unpublished works (with a few minor exceptions) did not receive federal copyright protection. Instead they were protected by state common law rights, which were perpetual. They would only enter the federal public domain when published and the federal clock started ticking, which is why a letter written in 1755 can still be protected by copyright.
With the 1976 Act, unpublished works were brought into the federal system and given a life + 70 term. So that means, for example, that any unpublished letters, manuscripts, diaries, etc. in the Stefan Zweig collection at SUNY-Fredonia will enter the public domain on 1 January 2013, since Zweig committed suicide in 1942.
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Is the article public domain?
It is far from clear that the official writings of Obama are in the public domain. It is true that "Section 105 of US copyright law makes it quite explicit that 'any work of the United States Government" cannot be covered by copyright." But the definition of a "work of the United States Government" found in Section 101 amplifies that these works are by "an officer or employee of the United States Government." The president is not an officer; under the Appointments clause of the Constitution he has the authority to appoint officers of the US government, hence cannot be one himself. As head of state, he is probably not an employee of the government.
The assumption through most of US history since Justice Story's opinion in Folsom v. Marsh has been that the president owned both the copyright and the physical property in his papers. The Presidential Records Act transferred physical ownership of the papers to the US government, but it is silent as to copyright.
In short, an argument could be made that Obama does own the copyright in his presidential writings.
Positive response to the decision
Eugene Volokh makes as strong an argument as can be made for the decision. If you are willing to concede that musicians can have a copyright in their performance of a song, then by analogy an actor should be able to have a copyright in her performance.
Volokh is troubled by the gag order.
Re: Re: Not retroactive
Words do matter. Masnick wrote that the UK law will be "retroactively pulling works out of the public domain." It may retroactively change the copyright incentive bargain in a way that delays the entry of works into the public domain. And it may prevent works from entering the public domain. But nothing that was already in the public domain has been retroactively pulled out of the public domain.
Not retroactive
143 comments, and not one of them points out that Mr. Masnick is wrong in his post. The UK change does not pull anything from the public domain; it instead prevents material from entering the public domain.
From the IPO's web site on the extension (http://www.ipo.gov.uk/pro-types/pro-copy/c-policy/c-policy-copyterm.htm):
"The extension of the term of protection applies only to those sound recordings that were in copyright on 1 November 2013 and to any sound recordings made after that date. The Regulations do not have the effect of bringing back into copyright those sound recordings where copyright has expired."
In spite of what Mr. Masnick says, no works were "pulled out of the public domain." The law does have the effect of delaying when works may enter the public domain, which is unfortunate. And Mr. Masnick's argument that it makes no sense to retroactively change the copyright agreement makes sense. But the public domain is the same size today that it was prior to the passage of the law.
Copyright status of US government works
US government works are in then public domain in the US, but can be protected by copyright outside of the US. Here is the text from the House Report on this section:
How this would play out under UK law is an interesting question. The UK normally follows the "rule of the shorter term," so that if something enters the public domain in the US, it is also in the public domain in the UK. But I don't know what would happen if an object is in the public domain for reasons other than expiration of term.
Does the OGL apply?
A colleague in the UK wondered whether Singer bothered to check about copyright ownership. A large proportion of Churchill?s more memorable pronouncements were made in his roles as a minister of the Crown, notably as Prime Minister, and are thus Crown copyright, not copyright of the family. Singer could quote them as extensively as he liked under the Open Government Licence and some would probably be out of copyright altogether as published Crown works.
Of course, this would imply that the estate was trying to claim copyright were none exists. Who would believe that a rights holder might try to overreach on the extent of its rights?
Multiple copyrights...
The performance by the Marine Corps band would be in the PD, as per Section 105, as Mike points out. We don't know who made the recording, though. It could be that Beyonce and/or the government brought in an outside recording engineer. We would need to know the terms of the employment contract for the music. And we don't know who wrote this arrangement of the Star Spangled Banner. It would have its own copyright, unless it was crafted by a federal employee.
Unfortunately an FOIA request for the backing tracks would likely say nothing about copyright status of the work.
First sale rights in CDs are already limited
The label on the CD may be correct. Look at 17 USC 109(b)(1)(A):
Re: Re: Don't forget about unpublished works...
Average_joe: prior to 1978, you sense would have been right. Unpublished works (with a few minor exceptions) did not receive federal copyright protection. Instead they were protected by state common law rights, which were perpetual. They would only enter the federal public domain when published and the federal clock started ticking, which is why a letter written in 1755 can still be protected by copyright.
With the 1976 Act, unpublished works were brought into the federal system and given a life + 70 term. So that means, for example, that any unpublished letters, manuscripts, diaries, etc. in the Stefan Zweig collection at SUNY-Fredonia will enter the public domain on 1 January 2013, since Zweig committed suicide in 1942.