Prof. Randal C. Picker, University of Chicago Law School
September 11, 2013

This is a big and lively topic.  The U.S. Court of Appeals for the Second Circuit issued a recent interesting decision on the interface of copyright and legal pleadings (Unclaimed Property Recovery Service, Inc. v. Kaplan), and there is a new lawsuit over the efforts of to distribute law freely to the public.  PublicResource operates from the understandable assumption that those governed by laws should have ready access to those laws.  That proposition sounds right, but quickly becomes more complicated when the government bases laws on documents created by private standard-setting organizations.  (Read the Electronic Frontier Foundation blog post for more background.)

I want to do a little statutory sleuthing, as I recently stumbled into a provision that I had not seen before or that I may just not have remembered.  We are in Section 7 of the Copyright Act of 1909.  That section stated that no copyright would arise in “any publication of the United States government.”  That idea is familiar enough to students of current U.S. copyright law, as Section 105 provides in parallel fashion that “[c]opyright protection under this title is not available for any work of the United States Government.”  But the statutory language in the 1909 Act was followed by a proviso: “That the publication or republication by the Government, whether separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor.”

That provision is what intrigued me, as did the absence of a parallel in current Section 105.  Start with the proviso to former Section 7.  There seem to be two possible ideas at work there.  One might be understood to suggest that somehow the U.S. government could sidestep copyright in its publication of copyrighted materials, a kind of sovereign immunity for the federal government.  The second idea is that publication by the federal government didn’t create any special rights in non-governmental third parties to use or publish those works.

If you aren’t Justice Scalia – and I am not – you turn to congressional reports.  The House Report for the 1909 Copyright Act (H. Rep. 2222 at page 10 for those of you reading along at home) explained the purpose of the proviso: “[T]he proviso in that section is inserted for the reason that the Government often desires to make use in its publications of copyrighted material, with the consent of the owner of the copyright, and it has been regarded heretofore as necessary to pass a special act every time this was done, providing that such use by the Government should not be taken to give to anyone the right to use the copyrighted material found in the government publication.  It was thought best, instead of being obliged to resort every little while to a special act, to have some general legislation on this subject.”

That seems clear: The proviso wasn’t intended to give the United States some right to use works outside of the copyright system but was instead to make clear that allowed use by the United States didn’t convey to anyone else the right to use that work.  The U.S. government had to get consent regarding works as any other person would have to do so and didn’t enjoy some sort of privileged position to publish or republish copyrighted works.

What should we make of the absence of the proviso in the current statute?  Lawyers know what to do with that, namely, argue that Congress clearly intended to drop the provision to effectuate a change in law.  At least as measured by congressional reports, that turns out not to be true.  House Report 1476 at page 60 addressed the status of the proviso and noted that with the reworking of the definition of “work of the United States Government” in the 1976 Act the former proviso “becomes superfluous.”  Of course, some still defended keeping the proviso knowing full well that its absence would give rise to future arguments over the meaning of the exclusion, but that idea was rejected with the following observation: “(1) there is nothing in section 105 that would relieve the Government of its obligation to secure permission in order to publish a copyrighted work; and (2) publication or other use by the Government of a private work would not affect its copyright protection in any way.”

So the proviso in former Section 7 was deleted, but the law was to be unchanged: The federal government was subject to the same copyright-use rules as anyone else and use by the government didn’t alter copyright protection at all.  The Committee then added one more remark: “The question of use of copyrighted material in documents published by the Congress and its Committees is discussed below in connection with section 107.”  As to that, the report later stated (at page 73): “The Committee has considered the question of publication, in Congressional hearings and documents, of copyrighted material.  Where the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern, the Committee believes that the publication would constitute fair use.”

All of that is quite interesting.  The proviso to former Section 7 was seemingly intended to make clear that the federal government was subject to the same copyright rules as everyone else in using works without consent and that use by the government didn’t confer extra rights on third parties.  That proviso wasn’t carried over directly into the 1976 statute, but that was because it was thought to be unnecessary and no change was contemplated to the powers of the federal government or to the rights of third parties hoping to claim rights through the federal government.  Congress actually considered circumstances under which it might want to make use of works and concluded that it would be subject to the same uncertainties associated with fair use as the rest of us.  That isn’t to say that the federal government might not have special non-copyright powers to use works – eminent domain for example – but in using works the missing proviso from Section 7 of the 1909 Copyright Act still seems to loom large.