Office of General Counsel : Copyright Issues of Special Interest to EPA Employees

Office of General Counsel
Copyright Issues of Special Interest to EPA Employees

A. The Nature of Copyright

Copyright protection is available to the authors of "original works of authorship"
including literary, dramatic and musical works as well as computer software. Copyright
protection for most works subsists from the time a work is expressed in a fixed and tangible
form, even if the work does not carry a copyright notice. The author of a copyrighted work (or
the author's assignee) has the exclusive right to reproduce, distribute, publicly perform or display
the copyrighted work, or to prepare derivative works based on the copyrighted work. An
author's copyright protects the author's expression, but it does not extend to facts or ideas
contained in that expression. The duration of copyright protection has changed in recent years,
but as a rule of thumb, one should assume a work is copyrighted if it was first published less than
75 years ago.

B. Government Works

Section 105 of the Copyright Act (17 U.S.C. § 105) reads as follows:

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.

Section 101 of the Copyright Act defines a work of the United States Government as follows:

A "work of the United States Government" is a work prepared by an officer or
employee of the Unites States Government as part of that person's official duties.

There can be no U.S. copyright in any work prepared by an EPA employee as part of that
employee's official duties. For example, if a work is the result of either a specific assignment or
is of a nature as to be so closely related to that employee's duties as to be an expected
consequence of such duties, there cannot be a U.S. copyright in that work. Accordingly, the
Copyright Act cannot be used to restrain dissemination of a work of the United States
Government in the United States, by either the work's author or the Government.

C. Works of Recipients of Assistance Agreements and Contractors

Works by recipients of EPA assistance agreements and EPA contractors are not
considered "works of the United States Government" under the Copyright Act. Under most
circumstances, assistance agreement recipients and contractors are allowed to establish copyright
in works produced under their agreements with the Government.

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agreements) with institutions of higher education, hospitals and other non-profit organizations is
governed by Title 40 Code of Federal Regulations (CFR), § 30.36. Copyright in works arising
under grants to state, local and Indian tribal governments is governed by 40 CFR § 31.34. The
copyright provisions governing EPA assistance agreements allow a recipient of a grant or
cooperative agreement to copyright a work without approval from EPA.

Copyright in works arising under EPA contracts is governed by Subpart 27.4 of the
Federal Acquisition Regulations (FAR)(48 CFR §§ 27.400-27.409). FAR Data Rights Clause
No. 52.227-14, Rights in Data-General (48 CFR § 52.227-14), is found in most EPA research
and development contracts. FAR Clause 52.227-14 provides that the contractor may establish
copyright in scientific and technical articles without approval from EPA. However, the FAR
clause does require the approval of the Contracting Officer before a contractor may establish
copyright in all other data first produced under a contract. In most cases, retention of copyright
protection by the contractor is in EPA's best interest in that the copyright provides an incentive
for the production, publication and utilization of the work.

In lieu of the above data rights clause, certain contracts for the production or compilation
of data may contain the FAR Clause No. 52.227-17, Rights in Data-Special Works (48 CFR §
52,227-17). Under the FAR's Special Works clause, the contractor agrees not to assert copyright
to the work first produced in the performance of the contract without prior written permission of
the Contracting Officer. If permission is not granted, the Government can obtain copyright by
requiring the contractor to formally register for copyright protection and assign the copyright to
the Government or a designated assignee. Thus, this clause provides a means for the
Government to obtain copyright in, among other things, compilations of data, including
computer software, that is developed under an EPA contract.

Works of individual authors originated while employed by a recipient of an EPA
assistance agreement or an EPA contractor are the property of the author's employer. Under
Section 201 of the Copyright Act (17 U.S.C. § 201), an employee's works are considered "works
for hire" and, as such, are considered the property of the employer. The rights of such employers
in their employee's copyrighted work are determined by the applicable assistance agreement or
contract regulations discussed above.

The regulations governing contracts provide that when a contractor is permitted to assert
copyright in material generated under the contract, the Government is vested with a royalty-free,
nonexclusive, and irrevocable license throughout the world to reproduce, distribute (except for
computer software), perform or display publicly the work, and prepare derivative works from the
work by or on behalf of the Government. Similarly, although not identically, the regulations
governing assistance agreements provide that when a recipient asserts copyright in material
generated under an assistance agreement, the Government reserves a royalty-free, nonexclusive,
and irrevocable right to reproduce, publish or otherwise use the work for Federal purposes, and
to authorize others to do.

Updating and revising official government reports or copyrighted compilations of data
received under EPA assistance agreements and contracts is sanctioned within the terms of the
Government's copyright license. Such a revision to an EPA-sponsored report would not alter the

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copyright held by the EPA assistance agreement recipient or contractor, nor would it change the
status of EPA's copyright license in such material.

EPA is also entitled, pursuant to its copyright license, to modify copyrighted materials
prepared by EPA contractors. For example, if an EPA Project Officer, in using a copyrighted
report, initiates changes that result in a revised final report, such action is consistent with the
terms of EPA's copyright license.

D. Joint Works of EPA and Non-EPA Employees

When an EPA employee, as a part of his or her official duties, participates as a coauthor
of a work, the portions of the work coauthored by the EPA employee are potentially excluded
from copyright protection under Section 105 of the Copyright Act (17 U.S.C. § 105). Portions of
the coauthored work that can be separated from the work of Government employees remain
copyrightable. When it is anticipated that an EPA employee will participate as a coauthor of a
work arising under a contract or assistance agreement, it is advisable to give the outside coauthor
notice of copyright restrictions that might apply.

E. Use of Copyrighted Materials

Copyrighted material, other than for works for which EPA has a license, may not be
copied or displayed by EPA, or incorporated in EPA documents, unless written permission of the
copyright owner has been obtained. Prior use of copyrighted material in another government
publication does not constitute permission for EPA to use the same material. Also, bear in mind
that the absence of a copyright notice or the unpublished status of a work does not establish that
the work has not been copyrighted. When permission to use copyrighted material has been
obtained and the material is used in an EPA document, the copyrighted material should be
identified by the following statement:

Reprinted from (title of publication, year of first publication) by (name of author)
with permission of (name of copyright owner).

The National Technical Information Service (NTIS) requires that copyright release letters
accompany publications submitted to it for distribution. The following is an example of a letter
giving EPA and NTIS permission to use copyrighted material:

Dear :

Permission is given to the U.S. Environmental Protection Agency (EPA)
and to the National Technical Information Service (NTIS) to reproduce and sell
the document identified below containing the following copyrighted material:
(Describe the material; include the title, page number, number of the table(s) or
figure(s), and any other identifying information.) The following copyright
acknowledgment will be included: "Reprinted from (title of publication, year of
first publication) by (name of author) with permission of (name of copyright
owner)."

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EPA Document: [Identification of the EPA Document]

The EPA author should, within reason, follow any special acknowledgment wording requested
by the copyright owner.

The data rights provisions applicable to both assistance agreements and contracts limit
the right of the recipient or contractor to incorporate copyrighted materials in the product
delivered to EPA. Prior to inclusion of copyrighted material in work product delivered under an
EPA assistance agreement or contract, the recipient or contractor must first obtain the copyright
owner's written permission for the Government's use of such material. The recipient or
contractor is responsible for all necessary paperwork and any fees related to obtaining
permission to use copyrighted materials.

F. Fair Use Doctrine

The narrowly-construed doctrine of "fair use" limits a copyright owner's absolute
ownership rights. The contours of the "fair use" doctrine are vague. Section 107 of the
Copyright Act (17 U.S.C. § 107) instructs that "fair use of a copyrighted work...for purposes
such as criticism, comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright." Although the Copyright Act
does not attempt to define "fair use," the statute includes four factors to be considered by courts
making "fair use" determinations. The four factors are as follows:

1. the purpose and character of the use, including whether the use is of a commercial
nature or is for nonprofit educational purposes, and whether the use is
transformative;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted
work.

Under the first factor, courts focus on two primary issues. First, they consider whether
the use is a transformative use that adds something to the work (e.g., literary criticism or
scholarship) or whether the use is merely a copy offered as a substitute for the original. Second,
the courts consider whether the use is for commercial or nonprofit purposes. A nonprofit use for
socially beneficial purposes, while not determinative, weighs in favor of a fair use finding.

Under the second factor, courts find the scope of "fair use" is greater with respect to
factual works than non-factual works. Under this factor, courts have also found that the scope of
fair use is much narrower for high-priced newsletters than for inexpensive mass circulation
periodicals such as newspapers.

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Under the third factor, courts disfavor the copying of entire articles or publications.
Courts consider not only the percentage of the original used but also the importance of the
portion used. Use of a portion that is the "heart of a work" is less likely to be considered a "fair
use."

Under the fourth factor, courts are less likely to find "fair use" if widespread practice of
the challenged use would adversely affect the market for the copyrighted work.

In making "fair use" determinations, courts are not restricted to the four factors discussed
above. In addition, the amount of weight courts assign to each factor varies with the specific
circumstances. Accordingly, "fair use" inquiries are highly fact-specific and do not readily admit
to bright line generalizations. For further guidance on questions of "fair use," contact EPA's
Office of General Counsel.

G. Computer Software and Networks

Commercial computer software is almost always copyrighted. In addition, computer
software is generally sold under software license agreements that provide additional limitations
on use of the software. As with other categories of copyrighted materials, permission of the
software's copyright owner must be obtained before the software may be copied or otherwise
incorporated into an EPA work product. Permission for limited use and copying of computer
software may sometimes be found in the software license agreement under which the
Government purchased the software.

Computer networks and bulletin boards facilitate the display and copying of copyrighted
materials. Display of a copyrighted work on a computer network or bulletin board is no different
than the mass distribution of hard copies of the same work to everyone who can access the
network or bulletin board. Thus, display of copyrighted materials on widely accessible computer
networks and bulletin boards could subject the Government to unforeseen copyright
infringement liability. Thus, copyrighted materials should not be displayed on computer
networks or bulletin boards unless the copyright owner has given EPA written permission for
such display.
Revised as of June, 2004

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