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Works created by the U.S. government's institutions are in the public domain within the U.S. territory - not around the world.

However if the U.S. government institution with such clarification on their website that covers most of the content, CREATES a publication and posts it and calls it "public domain" without further clarification that it is only within the U.S. territory. They put it out so everyone can access it from all around the world and they even write "this is a public domain work".

Would that be then considered world wide public domain despite the fact that their copyright page which is their general policy for all works states that it follows the U.S. laws about copyright?

Definitely in my opinion they have published this work as simple and clear open public domain. I do not think that users of such works are guilty. What might happen is that the government then sues this institution and says "this was not allowed". In that case the institution stepped over their authority. However considering that universities and other educational institutions have a high degree of autonomy, maybe they did nothing wrong after all.

Many people around the globe use these works in question. People from Germany, U.K. even China and Japan. The institution knows about this from my understanding. Whether there was some dispute or agreement about it, I don't know yet?!

What do you think, did anyone violate the law here? The users of such works or the institution?

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    Are you sure the institution in question is part of the US federal government? This rule doesn't apply to state governments, which would include practically all public universities in the US, nor to private organizations which receive federal funding. May 19 at 23:19
  • The institution is a library financed from my understanding from the federal budget.. May 19 at 23:34
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    @AlanDontAsk, "financing from the federal budget" isn't sufficient: it needs to be part of the federal government. It sounds like we need more details, ie. exactly which "U.S. gov. institution" is involved.
    – Mark
    May 20 at 0:22
  • @AlanDontAsk It doesn't matter where financing comes from. The question is whether the person is an officer or employee of the United States federal government. For instance, federally funded research and development centers (like most DOE national labs) are owned and 100% funded by the federal government and exclusively work for them, but they're operated by a contractor. Their employees are not considered federal employees, so works produced by these centers are covered by copyright.
    – cpast
    May 20 at 1:29
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By definition,

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.

It doesn't matter what the nature of the "institution" is, what matters is the author's status. Note that an independent contractor may own the copyright, so it depends on the details of the arrangement. The US Government's position is that

the copyright exclusion for works of the U.S. Government is not intended to have any impact on protection of these works abroad (S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). Therefore, the U.S. Government may obtain protection in other countries depending on the treatment of government works by the national copyright law of the particular country. Copyright is sometimes asserted by U.S. Government agencies outside the United States

This is based on the Senate Judiciary Committee Report when this provision was introduced, esp. p. 56:

The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted, and there are no valid policy reasons for denying such protection to United States Government works abroad. Section 8 of the statute now in effect includes a saving clause intended to make clear that the copyright protection of a private work is not affected if the work is published by the Government. There is no need to restate this principle explicitly in the context of section 105: there is nothing in section 105 that would relieve the Government of its obligation to secure permission in order to publish a copyrighted work, and publication or other use by the Government of a private work could not affect its copyright protection in any way.

A government work could be publicly licensed for use in other jurisdictions, but statutory public domain does not exist in this case.

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  • The institution has a page "copyright" where they explain these rules you quoted. They published this work with a clarification worldwide with "This is a public domain work". For other works, they refer to the copyright page they have. But for this particular work which is available worldwide they wrote "this is a public domain work". No restrictions defined or laws from the U.S. cited next to it. U.S. institutions may publish CC and public domain works world wide. Or not? Is this a public domain work now world wide? Or only within the U.S.? May 20 at 3:31
  • If they simply publish something and write "this is a public domain work" without clarifying the geographical restrictions or laws they call upon such as the U.S. laws about copyright exclusion... Then from my understanding, that work is actually a public domain work. Right? Universities should be allowed to publish Creative Commons and Public Domain works. Right? May 20 at 3:34
  • @AlanDontAsk It is not nearly as clear as clear as that. See my Answer for details. May 20 at 16:40
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Unclear US Rules

The rules on declaring a work public domain before the copyright expires under law are less then clear. In a sense, there are no such rules. There is no provision in 17 USC, the current US copyright law, for doing so by any means. The US copyright office will record declarations that a work has been donated to the public domain, but they express no opinion on the legal validity of such declarations. My understanding is that courts have been inconsistent on this issue, and some courts have held that such declarations have no legal effect at all.

However, if a notice that the document is in the public domain was placed with the permission of the copyright holder, a court would probably find that estoppel or perhaps, the "unclean hands" doctrine prevented the holder from collecting damages in a suit for infringement. Even if the notice was not authorized, a reuser would probably count as an "innocent infringer".

Still it might be wise to verify the intent of any such notice, and that it is actually authorized by the copyright holder. All of this is true regardless of any involvement of the US Federal Government.

Sources

Justia's page on "Works in the Public Domain" says:

A copyright owner can choose to surrender their rights in a certain work. This means that the work is released into the public domain so that anyone can use it. The owner must make an express and unambiguous statement of their intent. You should not assume that a work has been dedicated to the public domain unless it is very clear. Sometimes this occurs through a Creative Commons CC0 license, but this is not the only method.

But it cites no law or authority for this statement. Nolo's page on "How Can I Use Copyright-Free Works (in the Public Domain)?" takes a similar view, saying:

Millions of works have been dedicated to the public domain. This means the author or other copyright owner chooses to give up all rights in the work forever. This is often done online using a Creative Commons CC0 license.

However, using a CC0 license is not required. A copyright owner's use of any words unequivocally dedicating a work to the public domain can suffice, for example, words such as "this work is dedicated to the public domain and may be reproduced without authorization.”

Unless there is express authorization placing the work in the public domain, do not assume that the work is free to use.

Again, no law or caselaw supporting these statements is cited.

Even assuming that the position taken by Justia and Nolo is legally correct, one must be careful. Only an action by the copyright holder or at the holder's express direction would suffice to put a work in the public domain. If an agent, authorized to publish a work on a web site, attaches a "public domain" notice without the holder's direction, perhaps through misunderstanding, such a notice would not place the work in the public domain.

The Authors' Alliance page on "Paths to the Public Domain" says:

In theory, a copyright owner can voluntarily abandon her copyright prior to the expiration of the work’s copyright term by engaging in an overt act reflecting the intent to relinquish her rights. Abandoned works then become part of the public domain, free from copyright and available for anyone to use.

Creative Commons offers a “No Rights Reserved” tool for copyright owners who wish to waive copyright interests in their works and thereby place them as completely as possible in the public domain. And recently, satirist Tom Lehrer added a statement to his website granting permission to the public to download and reuse his lyrics, noting that they “should be treated as though they were in the public domain.” That said, a scholarly article by Dave Fagundes and Aaron Perzanowski criticizes the current state of the law surrounding copyright abandonment. The authors assert that the lack of a clear, reliable way to abandon copyright frustrates authors who wish to abandon their copyrights, and the practical effectiveness of abandonment is undermined by the lack of a broadly accessible record of abandoned works.

On another page from the Author's Alliance there is a summary of the article by Fagundes and Perzanowski, which reads:

In a new article, Abandoning Copyright, Dave Fagundes, Professor of Law at the University of Houston, and Aaron Perzanowski, Professor of Law at Case Western Reserve University, review the doctrine of copyright abandonment and suggest reforms to facilitate copyright abandonment and promote a richer public domain.

Copyright abandonment refers to the voluntary and permanent relinquishment of an owner’s rights in a copyrighted work prior to the expiration of the work’s copyright term. In general, an author abandons her copyright by forming an intent to relinquish her rights and engaging in an overt act reflecting that intent. Abandoned works become part of the public domain, free from copyright and available for anyone to use. Fagundes and Perzanowski propose that copyright law should facilitate the legal and administrative process of abandonment, suggesting that doing so would realign copyright law with the constitutional intent of incentivizing creation to enrich the public.

The authors acknowledge that abandoning copyrights prevents an author from extracting the economic value of a work that is derived from exploiting exclusive rights. In addition, an author who abandons copyright also gives up the ability to prevent uses to which they would object. However, the public welfare is greatly benefited as the work becomes freely available for anyone to access and use. As such, abandonment can encourage new creative production by making more “raw material” available for other creators to use in their own works, whether it be original creation or derivative works (the authors point to examples of multiple movie adaptations based on literary works in the public domain, such as Alice in Wonderland, Peter Pan, The Jungle Book, Sherlock Holmes, King Arthur, and Robin Hood).

Fagundes and Perzanowski criticize the current state of the law surrounding copyright abandonment: The lack of a clear, reliable way to abandon copyright frustrates authors who wish to abandon their copyrights, and the practical effectiveness of abandonment is undermined by the lack of a broadly accessible record of abandoned works. The Copyright Act of 1976 contains no explicit provision on how an author may opt out of copyright law’s grant of economic rights. They also highlight that although the U.S. Copyright Office records notices of abandonment, it does not indicate whether such recordation is legally effective in actually abandoning the copyrights. Finally, they point out that the doctrine of abandonment is ill-defined and courts are inconsistent in their rulings, often mixing abandonment with other doctrines such as forfeiture or waiver. They ultimately conclude that these shortcomings might discourage authors who would otherwise be inclined to abandon their works because the practice appears inaccessible.

The abstract of the article published by Case Western Reserve Law School, and starting on page 487 of the journal reads:

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders — ranging from lauded filmmakers and photographers to leading museums and everyday creators — make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades U.S. Copyright Office records, demonstrating both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly 300 decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright’s constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good.

Starting On Page 535 of Abandoning copyright, the authors say:

Of the remaining 162 decisions that squarely address abandonment, only seventeen found that the works in question had, in fact, been abandoned. ...

Our examination of these decisions suggests that, not unlike their chattel property counterparts, the copyright abandonment cases reveal considerable confusion, uncertainty, and inconsistency. First, courts have failed to reliably distinguish between abandonment and a number of related, but conceptually and practically distinct doctrines. In part, this confusion reflects the extent to which abandonment was doctrinally intertwined with the formalities that prevailed in copyright law prior to the 1976 Act. Since then, courts have delineated some of these doctrines more clearly. ,,, Second, aside from the bare recitation of the common law test for abandonment, a fully realized and consistently applied doctrine has yet to take shape. Given the paucity of cases in which abandonment defenses prevail, it remains difficult to predict with much confidence which acts courts will deem sufficient evidence of the subjective intent to abandon. ...

... courts frequently refer to “abandonment” when cases actually present a question of forfeiture.301 At other times, courts blur the line between abandonment and a number of related, but distinct doctrines including acquiescence, waiver, estoppel, and implied license. ...

... Public domain status is best understood as the legal consequence of both abandonment and forfeiture. While the term “dedication” implies some degree of intent, courts often refer to forfeiture as a public domain dedication.3 In any case, dedication is not a distinct doctrine with its own legal standard. Notably, copyrights in certain foreign works that were in the public domain were restored by the Uruguay Rounds Agreement Act in 1996 if they were forfeited, but not if they were abandoned. ...

Estoppel and acquiescence compound the problem. As the Supreme Court recently clarified, estoppel applies “when a copyright owner engages in intentionally misleading representations concerning his abstention from suit, and the alleged infringer detrimentally relies on the copyright owner's deception.”317 Acquiescence is best understood as a type of estoppel. It turns on express or implied assurances made by the copyright holder to the defendant that it will not assert its copyright.318 This focus on reliance distinguishes estoppel and acquiescence from abandonment. Like waiver, even if estoppel or acquiescence can be established, the copyright holder retains ownership and the ability to enforce its copyright against the rest of the world. ... ... Bates v. Keirsey (No. D041368, 2004 WL 2850153 (Cal. Ct. App. Dec. 13, 2004).) presents an easy case of abandonment.332 The authors and copyright holders of the book Please Understand Me wanted to import copies from Hong Kong.333 In order to avoid the manufacturing clause, Bates and Keirsey signed a document entitled “Abandonment of Copyright” that read, in part, “We hereby abandon our copyright to the book titled Please Understand Me.” The court was convinced that the “evidence unequivocally established” that Bates engaged in an overt act demonstrating his intent to abandon.

...

Melchizedek v. Holt (792 F. Supp. 2d 1042, 1045 (D. Ariz. 2011).) concerned the copyright in a meditation video. In an open letter, the creator of the video explained that he “let the video go out to the world unrestrained. No control on the copyrighted material. No money coming back to me from the videos.”350 He went on to explain that he “never cared about the copyrights [and] wanted the information to go out to the world.” Later, he told workshop attendees that he “do[es]n't care about copyrights or any of that stuff, that doesn't matter.” Nonetheless, the court found the evidence insufficient to establish abandonment.

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  • From what I can tell thousands of people around the world are using the works and to facilitate this use, the institution has provided servers, money and download options, it also has published numerous pages explaining how to use it and on the main page where they publish the works they have stated numerous times that these works are I quote "publicly available complete" "public-domain works" They also stated that the license is not required to access the works anymore and that ACCESS to the works required a license before 2017. I don't think this was a mistake by one employee May 20 at 17:20
  • Important is to distinguish the mere "access" license to the works and the actual copyright license. Just because an access to their data-base required a license, it does not mean that these works were actually ever copyright protected. May 20 at 17:22
  • Now does that "unequivocally establishe" that they do not intent to keep their rights? I guess? Right? Not only they said so, but they invested money and time and started an entire project with people working on it to make it possible and they have without any doubt stated that these works are public domain works. Sure they could now go out and sign this “Abandonment of Copyright”, but for millions of users? I don't think their hands would handle that many signatures XD.. What is a realistic way a huge institution can publish public domain works without signing a document for every visitor? May 20 at 17:25
  • I think that it is perfectly clear why in Melchizedek v. Holt the court has decided that the owner of the copyright never released his works to be public domain. He literally in his statement called his works "copyrighted material" “let the video go out to the world unrestrained. No control on the copyrighted material. No money coming back to me from the videos.”That is completely opposite of calling his material public domain work. The court ruled justly and I do not understand the confusion about that case? His wording was confusing maybe, maybe he really does not care but that doesn't count May 20 at 17:47
  • The first question is, whom i9s the actual copyright holder on these documents. if it is not the organization publishing them, then nothing that organization has said or done is relevant to the question of PD status. If the org is the holder, the above makes a good case for PD. But in the current state of US law, nothing but a specific court ruleing on the document is airtight. May 20 at 17:51

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