Bill Would Curb Access to Government Works

Every year, researchers and specialists at federal agencies produce a wealth of scholarly work on every topic imaginable – from the environment to healthcare to military strategy and more.  The best part about all of this work is that it immediately flows into the public domain.  Rep. Todd Platts, however, would like to see that change.

Platts introduced a bill last week, H.R. 5704, that would extend copyright protection to certain scholarly works of faculty members of the Department of Defense’s service academies and professional military schools – the Naval Academy, West Point, and the National Defense University, for example.  The title of the bill reads:

To amend title 10, United States Code, to allow faculty members at Department of Defense service academies and schools of professional military education to secure copyrights for certain scholarly works that they produce as part of their official duties in order to submit such works for publication, and for other purposes.

This the bill would amend the US Code to enable faculty members of military academies and schools to obtain copyright protection for works, written in their official capacity, that they seek to publish in scholarly journals and similar publications, for which copyright is a requirement.  Upon accepting an offer to publish, the faculty member would have to transfer this copyright to the publication.  The text of this bill appears to be exactly the same as a bill that Rep. Platts introduced back in 2005 under the exact same title.  The 2005 version died in committee. 

This bill stands at odds with section 105 of the Copyright Act, which explicitly holds that government produced works cannot enjoy copyright protection.  Thus, military faculty members cannot claim copyright for works that they produce in their official capacity (they may still claim copyright protection for works produced outside of this official role).  Section 105 promotes knowledge and the public good by ensuring that citizens may access works created by those employed by their government.  The exception provided in H.R. 5704, however, would hinder this access.

This exception to section 105 is not necessary.  Copyright law provides temporary control over a work in order to incentivize the private creation of works that will ultimately enrich the public.  However, federal employees do not need the incentives to create set up for private work.  Rather, federal employees already have incentive enough – they work to serve the public, not for private gain.  In addition, if faculty members seek to publish their work, they can do so via their institution, the Government Printing Office, or a journal that does not require a copyright.  The incentives sought to be created by Rep. Platts' bill are superfluous and better suited for private authors.   

Furthermore, this exception would benefit the owners of scholarly journals more than faculty.  Under the bill, a faculty author would have to transfer his or her copyright to the journal, and would be ineligible to receive royalties.  However, a journal, in obtaining the copyright, could then control future publishing of the work, and reap subsequent profits. 

While the bill would allow scholarly journals to enrich themselves off of the work of government faculty, it would not eliminate any barriers to publishing.  The law does not need to be changed to enable faculty to publish more in journals, just the practices of these journals – a far less drastic measure.  Currently, if a scholarly journal or publication would like to publish the work of a military academy faculty member, it can.  It just cannot claim a copyright in the publication of this work.  This does not mean that a journal cannot obtain some profit from the work.  By including it in its latest issue, a journal might attract more readers to the issue and its work as a whole.  Further, if a journal adds to the government work, it may still claim a copyright, but only in its additions (see 17 U.S.C. § 403). 

Creating a copyright in the work of military faculty is not necessary, but would only harm the public’s access to the research and insight of its government.  By extending copyright, works created for the public could be locked down by private intermediaries.  Public access could then be hindered or completely shut off until the copyright term expires, 70 years after the author dies.  As such, the public would be denied large amounts of research and information to which it is entitled.    

Rep. Platts' bill solves no problems and only harms the public.  Here, hopefully history will repeat itself and, like its predecessor, this bill will die in committee.

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