Queen Anne's Revenge: Government Copyrights Creators And Government Copiers

Introduction

Copyright law evolved from England's Statute of Anne of 1709 through the current Copyright Act of 1976. Decades after Anne, the US Constitutional copyright power is grounded in promoting "progress of Science and useful Arts." ¹

Natural science and social science share principles of collecting accurate information, analyzing it and permitting others to review the accuracy of data collection, validity of analysis and conclusions. Good science may lead to conclusions particular respondents do not like, but the solution is better science, not hiding data, analysis or conclusions. Current press reports raise questions about both accuracy and availability of content for review. This article comments only on the availability and publication of government conducted, contracted or funded information. Premises predating the writing of the Constitution favor public access to information – consistent with the availability of science to enable better science, as opposed to royal suppression long predating the US Constitution.

Exclusive Rights for Limited Times – Then Public Domain

The Constitution provides:

In the language of the day the "progress of Science" corresponds to the right granted to authors to their writings, hence the copyright power.

In The Federalist the commentary addressed exclusivity – the exception to the public right to copy: "The utility of this power will scarcely be questioned. The copy right of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors."

"Limited time" is key. While the Statute of Monopolies of 1623, constrained the sovereign's grant, the Statute of Anne of 1709 enabled authors to make money from their work product by stopping "copying". That exclusivity would end, at which time the writing is available for the public to copy.

The balance and the desirable term has been the subject of much commentary. Competitors are generally privileged to copy one another's products unless there is an unexpired patent.³ Ideas are free for all to use. Copyright only protects the author's original expression in a work and does not protect ideas. ⁴ "[C]opyright law ... grants the public the right to copy without attribution once a copyright has expired"⁵

Government Works

This paper will focus on works of authorship – those documents that reflect showing and explaining scientific research, and the analysis and review thereof. A corollary to privately created works becoming public after expiration is that publicly created works are always public – if they are work product of the Federal government.

While having long roots in case law,⁶ to avoid doubt the Copyright Act of 1976⁷ makes it express:

State Governmental Works

Less clear is how to treat works of state governments. Bearing in mind that the Constitution grants power to Congress to enact copyright law, silence by Congress over state government works has required case law to develop. Georgia v. Public.Resource.Org, Inc. ⁹ balanced state sovereignty and a public interest to be free to copy some categories of state government works, leaving aside other works.

Federal Government Works

Wheaton¹⁰ dealt with a right to public access to and use of court opinions written by Federal judges. Common law copyright, Federal copyright deposit and the history of the exclusive right before publication were discussed in detail in Wheaton v. Peters.¹¹ The case involved a "reporter" (Wheaton) of Supreme Court opinions, who published them in book form trying to enforce exclusivity against another publisher. Notable, however was the statement:

Narrowly construed, Wheaton addressed the Court's own opinions. More broadly, it has been interpreted to address works of the Federal government. Within the opinion, it distinguished state common law copyright. State common law copyright was expressly preempted by the 1976 Copyright Act.¹²

State Government Works After the Foregoing Federal Analysis

Having established that both Federal government works are in the public domain and the differentiation between Federal and State copyright in Wheaton, the use of content created by state government has been a continuing issue, guidelines having been established in Georgia v. Public.Resource.Org, Inc.¹³ Use of state government works had been analyzed under the "government edicts doctrine." Essentially, public policy requires that in the public interest, the work product of judges and lawmakers are in the public domain. The analysis derives from sovereignty and the right of the public to have free access to the work product of their lawmakers. A less elegant approach looks to whether taxpayers "get what they pay for". Indeed, the government edict doctrine better applies to the public access and sovereignty analysis, while Georgia v. Public.Resource.Org, Inc. provides more weight to, while not specifically adopting, the latter.

Wheaton's rule that Judges do not own copyright in their opinions extended to state Judges¹⁴ in however, permitted headnotes and explanatory material, not written by the Judges, to be copyrightable. Extending the logic: "If judges, acting as judges, cannot be "authors" because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either." The corollary is:

Georgia applies the analysis of the public interest in the work product of public servants – at the lawmaking level. Nuances may still exist, for example, whether executive branch employees' works are similarly treated. Examples might include Attorney General advisory opinions, agency rules, agency reports, legislative positions and public information of an explanatory, rather than law making, nature. The sovereignty analysis may be more limiting than the "taxpayers get what they pay for" analysis.

A case about ownership of county tax maps¹⁶ states:

Works Made for Hire – Who Did the Hiring?

Whether the "hiring" party gets what they pay for also relates to who may own a copyright, if there is one. An Illinois tax map case¹⁷ applied the 1909 Copyright Act "work-for-hire" doctrine. Applicable at the time or the 1959 contracts there, the works created belonged to the contracting party – who paid. The 1976 Act, however, redefined a "work made for hire" rule. Currently where there is an employee, acting within the scope of employment, the employer is the "author."¹⁸ But the definition applying to a "specially ordered or commissioned work"¹⁹ requires both a written agreement, and applies only to specific types of work.²⁰ The Sidwell company might have permitted County ownership with a written agreement²¹, but if the agreement fell short (which it did) then Sidwell, not the county, would have owned the tax maps. Essentially, if works are prepared by independent contractors, there may be an absence of a claim of ownership by authorship if the work is merely paid for a government body, just as would be the case for a commercial entity.

Federal Grants 2 C.F.R. § 200.315

Contemporaneous news raises many issues regarding operations and management of many, if not all, Federal government agencies. The rule described above -- if Federal Taxpayers paid for the property to be created, then the public can use it -- in place before January 2025 should govern transactions before that date. The second "Title" in the Code of Federal Regulations is Title 2, Federal Financial Assistance. Broadly, this should control what "taxpayers pay for." Congress chose to create an Office of Management and Budget. As part of guidance for the agency, the "Intangible Property" provision²² essentially provides at least a right to "use" the work product for which taxpayers pay, when they pay for experiments, development or research:

1. the grant recipient may own intangible property but only use it for the purposes of the grant, without approval²³ ;
2. the grant recipient "may copyright" (sic, actually the copyright exists automatically under the 1976 Act, from fixation in a tangible median of expression) but the agency has "a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes and to authorize others to do so"²⁴
3. consistent with the above, "The Federal Government has the right to: (1) Obtain, reproduce, publish, or otherwise use the data produced under a Federal award; and (2) Authorize others to receive, reproduce, publish, or otherwise use the data for Federal purposes."²⁵

The foregoing apply to any entity who received Federal money, including "... state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient."²⁶

Hypotheticals: What Can Contributors to and Recipients of Federal Information "Do"?

Of course any particular information gathering project, good (social or natural) science involving accurate collection of data, analysis and explanation of what the data mean, and publication for review and criticism, should be published to provide insight and to enable critique by better science. This is the "progress of science" in the Constitution. While personal property aspects may encourage private science, when it is paid for by the public, the logical principles are the public should have free access to the information.

Suppression of information is anathema to good government and contradicts freedom of information principles. Indeed, Freedom of Information Act²⁷ exemptions include national security, personnel, trade secrets, trial and attorney documents, personal privacy and law enforcement. "We disagree as a matter of policy" is not an exemption.

Consider, for example, government funded research regarding "hot" public issues such as vaccines and climate change. Presumably both government employed scientists and outside grant recipients conducted research, analyzed and reported. Should a particular administration not "like" the content, it may, theoretically, not make the information easy to find, such as by closing an Internet page. However, there should not be outright suppression. Work of Federal employees has no copyright, so the whole world is free to reproduce and publish. Work of grant recipients likely has copyright belonging to the grant recipients and they should be permitted to publish their own work.²⁸

One potential anomaly would be if an agency acquired copyright from a grant recipient. The private entity might not be precluded from their own enforcement. And the copyrighted work would not automatically be in the public domain from Wheaton v. Peters, its' progeny, and the Copyright Act. This may well present a unique case.

Library or Archival Copies

Limited copying is permitted for works "out of print" by a Library or Archives.²⁹ No direct or indirect commercial advantage is permitted and the archived works must be available to the public, or at least outside researchers. Disclosed work must keep the original copyright notice, or warn that the work may be protected by copyright. The language was for books out of print or recordings no longer in publication, but making a copy available electronically is not expressly prohibited.

A Fair Use Affirmative Defense May Be Asserted

Fair use is an affirmative defense. Much of the previous discussion could be viewed as attacking a copyright plaintiff's burden of proving "ownership." The affirmative defense, of course, asserts that even if plaintiff proves their case of ownership and copying, the accused use is permitted. The public interest points above might, for example, be insufficient to negate someone's "ownership" but might highly weigh a "purpose of the use" evaluation.³⁰

What if the Accused Infringer is a State?

Yet another nuance may be presented in intergovernmental copyright issues, namely, what if the accused infringer is a state. The discussion above about sovereignty and copyright creation is a precursor to suing states. States have sovereign immunity and cannot be sued unless they consent to be sued. This point is also an excuse to bring in (public domain) art in this newsletter article. Allen v. Cooper ³¹ involved a public "attraction" – the shipwreck of the pirate Blackbeard's ship Queen Anne's Revenge off the North Carolina coast. The wreck was discovered in 1996 by salvage company Intersall, which had a contract with the state. Allen was contracted to document and record the salvage efforts. Keeping in mind the discovery was long after the Copyright Act of 1996, work made for hire rules would be determined under that law: written agreement plus statutory subject matter. Absent that, Allen would own the copyright initially as the author, and there was no assignment.

Essentially, the land adjacent the wreck was a tourist attraction, the state had ownership of the wreck in its waters, and the state published some of Allen's videos. Attempts to resolve all copyright issues were unsuccessful. North Carolina apparently also enacted statutory provisions³² which designated images of shipwrecks in the State's custody as public records. North Carolina defended in part based on sovereign immunity: one cannot sue a sovereign government in Federal court without its permission, unless Congress expressly authorized such a suit:

The Copyright Act, under the Article I patent and copyright power, like the patent power³³ did not permit Congress to "encroach ... on the States' sovereignty."

Returning to our hypothetical, what if a state decided to publish the contents of research of the Federal government, or paid for by a Federal grant? The latter may be expected to be fairly common where, for example, Federal grants supported research at state universities. Under Allen³⁴, it would be difficult to see how a copyright owner could suppress state publication under copyright law³⁵.

Conclusion

Copyright owners may seek to suppress publication of their works, subject to all the equitable requirements regarding injunctions, one of which, in most jurisdictions, is the public interest. However such an enforcement must be brought by a copyright owner. The weight of authority would indicate a strong possibility that merely funding does not acquire ownership. Indeed, works of government employees are in the public domain so should be free for anyone to publish. Similarly, a political interest in suppression may be inadequate to restrict funding recipients from publishing their research. Each case may depend on its facts in terms of the content, employment of the researchers and terms of contracts. However, the policy of copyright, from the Statute of Anne and Wheaton v. Peters is that information should become available to the public. Taxpayers getting what they pay for is an expedient political view.

Footnotes

* This article was published in "Intellectual Property", the newsletter of the Illinois State Bar Association's Section on Intellectual Property Law, Vol 64 No. 3, March, 2025

** David C Brezina is of counsel with Ladas & Parry, LLP and an Adjunct Professor at UIC School of Law. The content hereof does not express views of either institution or their clients. The analysis is presented relative to hypothetical questions that arose from recent news items and is not submitted to advocate a particular point of view.

1. Blackbeard image, public domain, Library of Congress. The name of Blackbeard's ship (background) was "Queen Anne's Revenge.

2. US Constitution, Article I, Section 8, Clause 8

3. Sears, Roebuck & Co. v. Stiffel Co. 376 U.S. 225, 84 S. Ct. 784, 11 L. Ed. 2d 661, 140 U.S.P.Q. 524 (1964)

4. Skidmore for Randy Craig Wolfe Trust v. Led Zeppelin 905 F.3d 1116 , 128 U.S.P.Q.2d 1206 , (9th Cir., 2018)-56287 )

5. Dastar Corp. v. 20th Century Fox Corp., 539 U.S. 23 (2003)

6. Wheaton and Donaldson v. Peters and Grigg, 33 U.S. (8 Pet.) 591 (1834)

7. 17 USC 105

8. Lengthy provisions describe available use of works by civilian employees of military and intelligence institutions and one civilian institution, the Merchant Marine Academy. 17 USC 105 (c), common themes balancing the public interest in use and implicitly, who pays for the work.

9. Georgia v. Public.Resource.Org, Inc., 140 S.Ct. 1498 , 590 U.S. 255 , 206 L.Ed.2d 732 (2020)

10. supra

11. supra

12. 17 USC 301

13. supra

14. Banks v. Manchester, 128 U. S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888). Callaghan v. Myers, 128 U. S. 617 9 S. Ct. 177, 32 L. Ed. 547 (1888)

15. Georgia, supra

16. County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001)

17. Real Estate Data, Inc. v. Sidwell Co., 809 F.2d 366, 371 (7th Cir. 1987)

18. 17 USC 201

19. 17 USC 101

20. "for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas"

21. Under the 1909 Act, the party paying acquired ownership under the "work for hire" rule. The subject matter was "tax maps", the compilation of which is arguably "an atlas" so a "work made for hire" agreement or an assignment might have documented ownership if under the 1976 Act.

22. 2 C.F.R. § 200.315

23. 2 CFR 200.315 (a)

24. 2 CFR 200.315 (b)

25. 2 CFR 200.315 (d)

26. 2 C.F.R. § 200.69

27. 5 U.S.C. § 552

28. As an example, should multiple experts collaborate on a chapter for a government report, that chapter is likely to be joint work under the 1976 Copyright Act, with each coauthor making a material contribution, having an undivided partnership like interest in the copyright, freedom to authorize reproduction, but with a duty to account to coauthors for revenue, subject to relevant contracts.

29. 17 U.S.C.§ 108

30. 17 US 107

31. Allen v. Cooper 589 U.S. 248140 S.Ct. 994206 L.Ed.2d 291 (2020)

32. See contemporaneous version N.C. Gen. Stat. § 121–25(b),

33. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999)

34. supra

35. Specific grant terms would, of course provide potential additional approaches. Past grants, however, could reasonably be expected to be generally written to favor providing public information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.