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 availability of copyright should be of particular interest to product and program managers, especially where valuable software, jointly developed by contractor and government employees, otherwise patentable but now subject to a statutory bar (i.e., enabling disclosure), might still be protected by copyright. For example, in a standard procurement contract subject to the FAR and DFARS, where the circumstance is such that software development was jointly accomplished without that circumstance being addressed in the contract, the government is now interested in commercializing the software, and further improvements to the code are desired, the foregoing approach should be considered, obviously with the consent or participation of the original contractor.

Consistent with the foregoing, in the general case where government employees have created a work of commercial potential that requires modification or refinement for market acceptability, the approach Outlined above may prove useful. Considering the large upfront investments involved in government software projects, intellectual property protection for the subsequent commercialization is an appealing prospect.

It is suggested that the government developer or acquirer of software-intensive systems should fully understand the ownership and intellectual property rights of all software code contained within their products before they engage in external business activities such as Foreign Military Sales (FMS), Direct Sales, or Technology Exchange Agreements. This applies to government-developed code; contractor-developed code; government off-the-shelf (GOTS) code; and commercial off-the-shelf (COTS) code; as well as libraries of images, data, etc.

COPYRIGHT PROTECTION ABROAD FOR GOVERNMENT WORKS

There is no such thing as an "international copyright" that will automatically protect an author's writings throughout the world. (22) International copyright protection can be secured in two ways: (1) by obtaining separate and independent copyright protection in each of the countries where such protection is sought, in compliance with the laws of each country (in other words, registration in each country) or (2) through international conventions or treaties that provide for the mutual recognition and protection of the literary and intellectual property of the citizens of the nations that are parties to such treaties or conventions. (23) Citizens of the United States who seek copyright protection in foreign countries may sometimes utilize the first method; sometimes the second, and sometimes neither are available (depending upon the law requirements of the country).

If a U.S. citizen wishes to utilize the second method of obtaining foreign protection, there are several issues of which he or she should be aware. Because most countries are signatories to international copyright treaties and conventions, most works authored by U.S. citizens are protected abroad. As of March 1, 1989, the United States became a party to the Berne Convention for the Protection of Literary and Artistic Works. (24) The countries to which the Berne Convention applies constitute a group of countries that recognize international copyright protection. At the present time, over 100 countries belong to the Berne Union. The Berne Convention works on the principle of "national treatment," under which a country extends the same protection to foreigners that it accords to its own authors. (25) In other words, protection against unauthorized use in a particular country depends on the national laws of that country where enforcement is sought.