As most people know right now, Wikileaks is in the process of publishing about a quarter of a million secret cables sent between the U.S. government and various diplomatic missions across the globe. The process began in late November, with a small number of cables being leaked out, and it continues today.
This has kicked off an international incident that has resulted in a back and forth war against the site. First Wikileaks lost its domain and had to move to a Swedish extension, then had issues with its DNS provider pulling out. After that PayPal, Mastercard and Visa all stopped processing donations for the site. This, in turn, has prompted others to lead various other attacks against the companies involved, even if they have sometimes been misguided.
However, at least some have wondered what role copyright plays in this case. Though some of the cables have been about intellectual property, including several that showed U.S. involvement in writing Spain’s draft copyright legislation, no one, yet, has tried to use copyright as a tool to silence the site.
After all, Wikileaks is copying and distributing works of creative authorship. Why has copyright not played a bigger role in the Wikileaks scandal, it seems a logical choice?
The reason is simple, copyright doesn’t have a role in this leak because none of the cables are copyright protected. This is due to a move made by the U.S. Government to protect free speech.
However, it is worth taking a moment to look at this reasoning as it is something that has implications far beyond Wikileaks and other, similar sites.
Though some of the cables
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The law on the matter is very clear, all works created by the U.S. Government are released into the public domain. This means all works created by Federal employees as part of their normal duties are, almost without exception, entered into the public domain.
Since the leaked cables were all written by U.S. employees as part of their job, the law applies directly. It may not have been the material the law was intended to cover, but it clearly does.
Still, there are exceptions to the rule. For example, some autonomous agencies, such as the U.S. Postal Service, may not be considered part of the U.S. Government for this purpose. Also, the government can have copyrights transferred to it, including by purchase.
It is also worth noting that this rule does not apply to state and local governments, which can still hold copyright in their creations, nor does it apply to other countries, which often have copyright protection in their government’s work, such as the UK’s Crown Copyright.
Still, the law is clear in this case, the cables are not protected by copyright and though there may be many other legal issues with copying them and spreading them, an issue that is up for debate, copyright infringement isn’t one of them.
It’s important to note that the reason this was written into the law was so that copyright could never be used as a vehicle to silence criticism of the government. Though the government has many other legal tools to keep its documents out of public hands, copyright is not one of them.
This is why copyright, beyond what may be in the cables, is not a factor in the WIkileaks case.
Still, it will be interesting to watch the actions that the government does take in this matter as we are learning the ways, as controversial as many of them are, that the government is trying to control and restrict the flow of its content without the aid of copyright law.
That may say more about the future of the Web than anyone ever intended, especially considering that it is likely future legislation, both in the U.S. and abroad, will likely reference this leak and be written with it in mind.