Why US Government Works are Public Domain

The United States is preparing to celebrate its 250th anniversary. Regardless of whether or how one chooses to celebrate the occasion, there will be a lot of fireworks (which can’t be protected by copyright), food (which recipes can’t be protected by copyright), and music (which can be protected by copyright, though most relevant songs have long lapsed into the public domain). 

However, there is another copyright idiosyncrasy that the United States has and that has been a part of this country, in one way or another, since its founding: The idea that works created by the federal government are in the public domain.

It’s a relatively unique idea that most other countries do not follow. It’s made it so that the United States legal documents can be freely copied, made access to NASA’s most beautiful images free for the public, and helped create a massive library of public domain content at the Library of Congress.

So why did the United States take this approach? As it turns out, it wasn’t a wholly deliberate decision. Though this idea has been around in one form or another since the nation’s founding, it wasn’t fully codified until 1976, over two centuries after the first federal copyright law was passed.

So, how did we get to this point? It’s less a tale of legislation and litigation and more a tale of the government choosing not to seek copyright protection in its own works.

The Early Years

The first federal copyright law in the United States was the Copyright Act of 1790. It is a remarkably short piece of legislation that makes no mention of the federal government’s copyright status at all.

This is actually important because, at this point, copyright was explicit. Something that was not mentioned in the law was not covered under it. As such, it was broadly assumed that works by the federal government were in the public domain. 

This was furthered by the idea that, for laws and other works created by the government to be useful, they needed to be accessible to the public, this included reprinting and republishing them.

However, the issue came to a head in 1834 in the case of Wheaton v. Peters. Henry Wheaton was the reporter of decisions of the United States Supreme Court. To supplement his income, he compiled the court’s opinions and published them along with summaries and annotations. His successor, Richard Peters, stripped out everything but the opinions and published abridged versions of Wheaton’s work for a much lower price.

Wheaton sued Peters for copyright infringement. Though much of the case hinged around formalities and the idea of common law copyright, one sentence from the decision was particularly important:

“Thus, any copyright protection for published judicial opinions could cover ancillary materials such as summaries of the opinions and commentaries on them but not the judicially-authored texts of the opinions themselves.”

In short, the court ruled that an employee of the federal government could not claim copyright protection in their work as an employee. This effectively placed such works in the public domain.

The First Legislation

Still, there wouldn’t be an official legislative prohibition on the federal government claiming copyright protection until the passing of the Printing Act of 1895. The act was largely meant to consolidate the government’s printing operations but also placed a prohibition on copyright in government works.

The move was prompted by “The Richardson Affair.” Representative James D. Richardson, who was the Chairman of the Joint Committee on Printing, proposed allowing the public printer to sell duplicate plates to facilitate private printing of government documents. Other representatives became concerned that this could lead to private copyright claims on government works, so the act was updated to explicitly prohibit copyright in government works.

In 1909, the US government passed an all-new copyright act. Appropriately entitled The Copyright Act of 1909,  it would serve as the basis of US copyright law for nearly the next 70 years. It too initially contained a prohibition on copyright in federal works in section 7, but it was watered down during codification. 

Still, between the Printing Act of 1895 and the Wheaton case, it was well established that works by federal employees as part of their job were in the public domain. That was upheld in the 1962 Supreme Court Case Public Affairs Associates v. Rickover. 

The case centered around Vice Admiral Hyman G. Rickover, who asserted copyright in several speeches that he had given. The court found that the speeches were not part of his official duties and were private works that were protectable under copyright.

The case created a framework for separating official public works, which are in the public domain, from private ones. Though it ruled that the speeches were protectable, the ruling did reaffirm that federal works are in the public domain.

Still, it would take more than a decade for it to finally be fully codified in the law itself.

The Copyright Act of 1976

Passed in October 1976, the Copyright Act of 1976 took effect on January 1, 1978, and completely replaced the Copyright Act of 1909. It’s the Copyright Act that remains in effect today (with modifications) and was the first copyright act to explicitly mention the federal government.

Section 105, entitled “Subject matter of copyright: United States Government works,“ simply states that:

“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.”

In short, works created by the federal government are not subject to copyright protection, though the government can hold copyrights that are assigned or transferred to it. It’s also worth noting that this does not place any restriction on state or local governments. 

It also, obviously, doesn’t place any restrictions on other countries, most of which do allow their governments to hold copyright in relevant works.

Still, it’s amazing how this has both been a part of the US tradition since the beginning but was only fully codified into US copyright law two centuries later. 

To be clear, there are many questions and issues that remain, in particular when determining which works are part of one’s employment and which are not. But it is still nice to have a clear and universal rule that applies to all works created by the federal government.

Bottom Line

For the most part, this is a uniquely American tradition and one of the few aspects of US copyright law that are both unique and largely beloved. The idea is simple. These are works created using public funds so they should belong to the public.

It’s something that the United States can and should be proud of.

Still, it was a long and winding road to get to where we are today.

What started as something of a technicality in the early years became canonized in legal decisions and eventually codified into the law itself. There was shockingly little intent in making this happen, but it did all the same.

If that’s not an American story, I don’t know what is.