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 PERILOUS PROBLEM: "MORAL RIGHTS"

The Berne Convention provides authors with "the moral right," under [6.sup.bis](1), although 17 U.S.C. [section] 106A does not use this term. (35) "Moral rights" are the rights of the author to be attributed as the author of the work and to object to a particular use of the work. This means that no one, including the person who owns the copyright, is allowed to distort, mutilate, or otherwise modify the work in a way prejudicial to the author's honor and reputation. Generally, moral rights reflect a belief that the author's creations are an extension of the author, and therefore, the author can control how the public views the author through his or her creations.

If a copyright owner sells the copyright to someone else, moral rights in the work are still retained by the author. These moral rights cannot be assigned by the author, but may be waived in whole or in part. (36) Finally, the rights exist for the same length of time as copyright, normally the lifetime of the author plus 70 years.

Although it is unlikely that a government employee would prevail in asserting damage to his reputation and honor as the result of the use or modification of a government work, a simple waiver can be obtained from the authors at the same time that an assignment is executed. This would serve to alleviate concerns over any future use of the material or transfer of title. Whenever copyright protection of government works is sought, the issue of "moral rights" should be of concern.

IMPORTANT ISSUES

Considering the potential for broad commercialization if intellectual property rights attach to federal technology, the federal technology manager should be aware of the opportunities the Copyright Law allows:

1. Copyright of federal employee work for everywhere outside the United States. Thus, a transfer of otherwise copyrightable U.S. government works including "data," software, etc., in jurisdictions outside the United States will not fail for lack of consideration because of copyright registration in a Berne Convention country. This may have an interesting effect on Foreign Military Sales or Direct Sales situations.

2. A contracting agency may negotiate for copyright ownership in "special works" giving the government more control of software.

3. A private party may copyright material created under a CRADA and then assign the rights to the federal party. This allows the private party to assign to the federal party both U.S. and foreign copyright protection in the eligible work. This assignment is important to provide both protections to the government work, as well as a commercial product that can be marketed by the private entity.

CONCLUSIONS AND RECOMMENDATIONS

Federal employees and federal contractor employees are creating information of significant commercial value every day. Valuable information might include images in various spectra, software that has been made unpatentable by a disclosure, training or process manuals, or look-up tables containing many kinds of data.