Section 105 of the U.S. Copyright Law tells us that there can be no copyright in works of the federal government. Almost uniquely among the nations of the world, the US government does not get to exclude others (including taxpayers) from using works created by government employees as part of their employment. There are numerous studies about the benefits of this lack of protection; one of the most interesting are these comments by Professor James Boyle in his book The Public Domain about weather data gathered by the US government. As Boyle points out, the social value of this freely-available data is much greater than any value that might be gained through copyright protection.
One group whose exclusion from copyright protection might strike us as unfair, however, is the faculty of the military academies (West Point, Annapolis, etc.) and government run War Colleges. While their colleagues at other institutions hold copyright in their scholarly works (unless an institution claims work made for hire), scholars at these schools do not. When I first read about a new bill in Congress, H.R. 5704, I innocently believed that it was an attempt to remedy that disparity, and my initial reaction was ambivalence.
I say ambivalence because my distress that material would be removed from the public domain by this legislation was balanced by a concern for fair treatment of this group of academics. Our public domain in the US has been seriously cramped and diminished by copyright legislation over the past twenty years, and removing works that are supported by taxpayers from the realm of public accessibility just doesn’t seem right. But neither does it seem right that this one group of scholars be treated differently than other university faculty members. So I was prepared to read the legislation with an open mind.
My mood turned from ambivalence to horror when I read the legislation. Inside the Trojan horse of faculty rights is hidden yet another grab for more rights and more profits by the publishing industry. Not only will this bill not benefit military faculty members, it will put them in a far worse position than other academic authors.
The problem with this bill, as with much legislation, is in the fine print. What seems like a marginal idea when you read the title of the bill is revealed as really lousy when you dig into the text. Here, the language of the legislation says that faculty at the covered institutions can secure copyright protection “only for the purpose of publication by a scholarly press or journal for which such a copyright is normally a requirement.” And then it adds the kicker — “Upon acceptance for publication of a work for which copyright protection exists by reason of subsection (a), the person holding the copyright shall transfer the copyright to the owner or publisher of the medium in which the work will be published.”
This bill is not about protecting military academy faculty. It is about allowing publishers to garner yet more profits off of work supported by US taxpayers. And it really mistreats the academic authors by requiring them to transfer copyright to publishers; the word “shall” in the sentence quoted above makes the transfer mandatory rather than voluntary. If the point had merely been to give faculty authors the same flexibility enjoyed by other scholarly authors, the work “may” would have been used. But the publishers who clearly drafted this bill don’t want to have to negotiate with these authors; they want a legal mandate to give them rights at the expense of taxpayers and the public domain.
Scholarly authors are free to negotiate the terms of publication. They do not have to transfer copyright, or they can make that transfer contingent on the retention of certain rights. In fact, the retention of various kinds of rights is extremely common today. But if this bill were passed, military faculty would not have that option; they would get copyright only for the purpose of publication and they would be required to transfer that copyright. No negotiation, no compensation or quid pro quo, just a windfall for publishers.
As this blog post about H.R. 5704 points out, this bill attempts to solve a problem that does not exist. Publishers have known for 200 years that there is no copyright in government work. Most publication agreements account for this by allowing authors to indicate that they are government employees and therefore have no copyright to transfer. But this bill, with its forced transfer of rights, would give the publishers a little more leverage over scholarship by giving them, and only them, copyright control over works previously in the public domain. It would not benefit the public or the authors of the work. The latter, indeed, would be compelled to work for publishers for free while being paid by taxpayers; they would be in a slightly worse position vis-a-vis publishers than are all other scholarly authors.
Apparently an earlier version of this bill — which for the sake of honesty should be titled “a tax on the public and on military faculty for the benefit of private publishing firms” – died in committee a few years ago. Let’s hope for a similar fate this time around.