Submission Date:
Question:
I am of the understanding that NYS departments documentation falls under public domain. Can you provide any insight into this? Thank you!
Answer:
I can most certainly provide some insight on this topic. But first, some terminology...
For readers who don't know, the "public domain" is the "place" distinct works of authorship (poems, paintings, books, etc.) go to when they are no longer protected by copyright. When a work is "in" the "public domain" it means it can be used without fear of copyright infringement.
Some works are "put" into the public domain by generous authors or owners, who want to optimize access. Some works "fall" into the public domain due to failures of proper registration, or other factors that can vary by countries of origin. And some works are "born" in the public domain...meaning that they have never been subject to copyright protection, even if they are sufficiently original to qualify for it.
A big example of this last category--works "born" in the public domain-- are works authored by the federal government, which are governed by Section105 of the Copyright Act ("United States Government Works"), which flatly states "Copyright protection under this title is not available for any work of the United States Government."
Of course, just because an entity can only create works in the public domain, doesn't preclude another avenue of copyright ownership. This is also illustrated by Section 105, which, after barring the feds from creating works protected by copyright, adds that the U.S. Government "is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." In other words: you can't make 'em, but you can get 'em.
This can lead to ownership pictures like the following scenario: if I work for the U.S. Department of Transportation, and as part of my job, I write a poem about Daylight Savings Time[1], then that poem is not protected by copyright. If, however, I am a free-lance marketer, and the Department of Transportation contracts with me to create that same poem[2] as a work-for-hire, then it can be protected by copyright, even if I assign it to the U.S. Government per the requirements of the contract.
The Copyright Act, however, does not contain a similar provision limiting the ability of states to own copyrights (this makes sense, since states can get snippy when the federal government tries to strip them of assets).
Of course, individual states, on their own, can disclaim ownership of copyright...a nice thing to do, perhaps, when content creation is funded by public dollars. Here in New York, however, such a disclaimer is not a uniform rule...and in fact, the rule is just the opposite.
In the federal government's Copyright Registry, the "State of New York" is the registered author, and/or owner, and/or prior owner, of many copyrights, including this one:
In the registration shown above, the "State of New York" is listed as the author of the registered work as an "employer for hire"...meaning that the State is not only positioned to author original works that qualify for protection, but can even assign those copyrights just like any other free-lancer.[3]
Of course, much of the text generated and maintained by the State of New York is intended for public use, and in some instances, the State has declared it to be "in the public domain".
For example, in 1973, the New York State Attorney General declared that all New York "codes, rules and regulations" are in the public domain and are not subject to copyright (which makes sense; how can a lawsuit be filed if quoting too much law was an infringement?). On the same opinion, however, the NY Attorney General stated that material included in an official compilation of the codes, rules and regulations--but not actually part of the text--is protected by copyright of the Secretary of State (this is what is shown in the registration above).
So, what insight does that give us? The State of New York (and any department thereof) can both own works protected by, and generate works subject to, copyright. Some state-authored materials, however, may be deemed to be in the public domain. There is no over-arching rule; it is content-specific. So, when using works generated or published by the state, caution is just as warranted as with any other author.[4]
Thank you for a great question!
[1] Your tax dollars at work!
[2] Here it is (for more info, visit https://www.transportation.gov/regulations/time-act)
The Uniform Time Act of '66
Created nine zones to restrict
Local authorities who set their clocks
At a sunshine whim, creating blocks
To orderly travel and safe crossroads
'Til somebody had to take control...
Who are these chronoscient powers-that-be?
The Time Lords at the USDOT
[3] If anyone wants to FOIL a copy of that work-for-hire contract, I would love to take a look at it. Maybe if we get an intern....
[4] The library community seems to be investigating this topic perpetually. And good news, helpful resources/guides have ongoing development. For example, the article “The state copyright conundrum” by Kyle K. Courtney (https://crln.acrl.org/index.php/crlnews/article/view/17438/19245) describes context around the uncertainty in government document copyright status as faced by librarians and archivists, and points to this resource made by a 2014 Harvard Library Office for Scholarly Communication, Copyright Fellow, Katie Zimmerman: “State Copyright Resource Center”, http://copyright.lib.harvard.edu/states/. Bonus points for the beautiful functionality of the interactive U.S. map, that leads to state-specific guidance on govdoc copyright considerations.
