Q1 As a general rule, are library-created newsletters, bibliogra- phies, web pages, and the like protected by copyright?
It depends. The first issue to consider is who actually created the work. A library may copyright works that it creates, with some exceptions. If it is a federal government library, then the work is not protected. This is because section 105 of the copyright law states in simple terms that
“Copyright protection under this title is not available for any work of the United States Government. . .”1
Q2 When is a library publication not copyrighted because it is a
“work of the United States Government”?
A library publication is a “work of the United States Government” when it is prepared by an officer or employee of the United States government as part of that person’s official duties.2
Q3 Does that mean that my library, which is not a federal library, can freely copy a bibliography published by a federal library?
In many cases this is true, but not always. First, you might think an agency is part of the federal government, when in fact it may be a quasi-federal government agency. For example, the United States Postal Service is nota United States government agency.3
Second, the United States government can actually hold copyright to works if it receives copyright ownership from third parties, transferred by assignment, bequest, or otherwise.4
Third, the U.S. government may publish a work that incorporates works produced by third parties. These works may be generated by grants, commissions, or other contracts; the copyright is still held by the third party unless transferred to the government.5 Alternatively, a pri- vately published work might be incorporated into a federal government publication, with permission granted to the government just for that one use. For example, a federal law library may publish a pathfinder that shows examples of how to use Shepard’s,a citation index, taken from a source that is copyrighted. Although you could copy most of the path- finder, you could not copy the portion that is copyrighted without permis- sion. This is called a “reserved” portion. When a work or portion of a federal government publication is reserved (a third party claims copyright in some portion of the work), a reservation notice indicating which portion of the work is copyrighted should be included.6The unreserved portion of the work is in the public domain.
Q4 If a federal librarian creates a work outside the scope of his or her employment, does the librarian hold a copyright to that work?
It is possible for a federal government librarian to hold a copyright to a work created outside the scope of his or her employment. It may not be enough to show that the librarian created the work on his or her own
time, however. The status of the work would turn on whether it is con- sidered to be a “work made for hire,” that is, a work prepared by the employee within the scope of his or her employment.7 If the work was created outside of employment, it would generally not be considered a work of the U.S. government.8
Q5 Are works published by state and local libraries copyrighted?
They can be. Only works by the “United States Government” are “exempt”
from copyright according to section 105. Thus, by definition, other gov- ernmental entities such as states and local municipalities may exert copy- right in their publications.9 There is a traditional exception to this for state statutes, judicial opinions, and regulations, but other works emanat- ing from foreign, state, municipal, and local governments may be copy- righted.10If a local government adopts a privately written building code, it is even possible that the building code’s copyright is still retained by its author or publisher.11
Some states have chosen to release their products into the public domain, although they are under no obligation to do so by the federal copyright law. Others opt to retain copyright. For example, the Oklahoma attorney general indicated that copyright might be claimed in works of the Oklahoma Historical Society.12Similarly, the Louisiana attorney general has stated that agencies of the state “may own the copyright in its capac- ity as a private person.”13
Q6 Would a state or local librarian’s work be copyrightable?
Like the federal employee example, a work created by a state employee
“within the scope of his or her employment” would be subject to the
“work made for hire” doctrine and thus the state could exert copyright ownership in the work. A work that is not related to librarianship, created outside the scope of employment, and fully created at home would belong to the librarian. It gets more complicated if the work does relate to librar- ianship, and a court would need to carefully determine the scope of the librarian’s employment. In the much-cited Marshall v. Miles Laboratories case, a scientific researcher wrote an article at home during off-hours on technology and industrial chemicals. A federal court held that it was a
“work made for hire,” and belonged to his employer. The court relied heavily on the fact that Marshall’s job description stated that he was responsible for researching and reporting information about advances in technologies.14
Q7 Are all types of works created in a library copyrightable?
No. The work must be original and fixed in a tangible medium of expres- sion.15 An oral workshop given by a librarian to a class is not copy- rightable, unless it is fixed in a tangible medium, such as videotape.
Handouts are copyrightable, if they are not the works of the federal gov- ernment, or of a state government that has ceded its works into the public domain.