Protecting government works: the copyright issue - Tutorial

Acquisition Review Quarterly, Wntr, 2002 by Paul C. Manz, Michael J. Zelenka, Raymond S. Wittig, Sally A. Smith

The federal government, through its employees and contractors, produces commercially valuable inventions and information every day, often without any protection of the intellectual property involved. Intellectual property protection may provide sufficient incentive to investors to commercialize by granting a measure of exclusivity for a period of time. Federal program managers and directors. (1) as well as private sector investors, should become familiar with all available intellectual property protection, such as: copyright law, including its impact on "government works;' those created by federal and contract employees; the alternatives that would permit the Government to own the copyright in "government works"; the ability to allow private sector companies to assign co-authored works; and the importance to a federal technology manager of such protection.

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Under the United States Code (U.S.C.), there is no copyright protection available in the United States for work by government employees if the work was developed as part of the creator's official duties. Exceptions contained within the 1976 Copyright Act (2) and other alternatives could allow government-employee-authored-works to become eligible for copyright protection outside the United States.

COPYRIGHT PROTECTION DEFINED AND EXAMINED

The protections provided by patent and copyright statutes differ significantly. But by using the protections afforded through the appropriate intellectual property law, a federal technology manager can protect inventors and inventions, and in some instances, authors and their works.

WHAT IS A COPYRIGHT?

Copyright is a form of property right protection provided by the laws of the United States (Title 17, U.S.C.) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright affords the right to protect against unauthorized copying of a protected work. This protection is available to both published and unpublished works. Some copying is permitted by statute. (3)

HOW IS A COPYRIGHT DIFFERENT FROM A PATENT?

A patent protects certain statutorily defined classes of new, useful, and non-obvious inventions for approximately 20 years. A patent protects not only one form of an invention, but all of the other forms obvious to one skilled in the subject matter of the invention. In order to obtain patent protection, an inventor or his legal representative must file a patent application describing the invention with the Patent and Trademark Office (PTO). Patent examiners at the PTO review the application. If after examination and dialogue with the inventor (or his legal representative) it appears that the applicant is entitled to a patent under the law, the PTO shall grant a patent to the applicant.

The protection available by a copyright is narrow in scope, but is granted for a long period of time. (4) Copyright protects only against the copying of a work by providing a safeguard to a single expression of an idea and only that expression of the idea. (5) Copyright protection does not preclude another author from creating independently authored, yet identical, works. A work is automatically protected from the moment of its creation and fixation (6) and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. (7) For works of corporate authorship, the term is 95 years after the date of first publication or 120 years after creation, whichever comes first. Note that unlike patents, examination of the material is not needed to attach copyright protection.

When a work is published, it may bear a notice of copyright to identify the year of publication and name of the copyright owner and to inform the public that the work is protected by copyright. (8) This differs from a patent where protection is indicated by a notation of its assigned patent number. To show the contrast between patents and copyrights, for example, a patent may be obtained on the process by which the barrel of a gun is constructed and allows for redress against those who attempt to manufacture a gun barrel using a process that incorporates the protected steps, whether or not the one infringing had knowledge of the existence of the patent on this process. A copyright may be obtained on the manual of how to use the same gun and allows the owner to preclude someone from copying the manual, but it will not protect the owner from someone who writes his or her own manual that is independently generated, albeit identical.

WHAT ARE COPYRIGHTABLE WORKS?

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly discernible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories: (9)

1. Literary works (training manual, description of technology one-pager, procedure manuals, or process descriptions).

2. Musical works (sound wave transmissions, acoustic signatures, and recordings), including any accompanying words.