Posted by Eugene Volokh:
What To Do If You Get Leaked Government Documents:
http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119224726
I express no opinion about the bottom line of the Downing Street
retyping matter, but I did want to speak to [1]one small item raised
by USS Neverdock:
It appears the originals may still exist after all. Raw Story has
this tid bit:
âI first photocopied them to ensure they were on our paper and
returned the originals, which were on government paper and
therefore government property, to the source,â he added. [...]
âIt was these photocopies that I worked on, destroying them shortly
before we went to press on Sept 17, 2004,â he added. âBefore we
destroyed them the legal desk secretary typed the text up on an old
fashioned typewriter.â
Smith appears to be tripping up here. He says he returned the
originals because they were on government paper and therefore
government property. So, photocopying a page out of a book makes
the words no longer the property of the author?
Actually, if you get a government-owned government-written document in
the U.S., and you want to print something from it, copying it and
returning the original makes sense.
First, it is not a violation of the government's property rights for
you to copy the material; under U.S. law, government-written documents
aren't protected by copyright. Moreover, under U.S. law, it is
generally not illegal for a newspaper to publish leaked classified
documents (with, I believe, some exceptions), though it would be
illegal for someone who got them in confidence to publish them. (One
may also want to return the documents to help protect one's source, if
the absence of the documents might implicate him in a way that the
leak itself will not.) I realize that returning the originals may make
it harder to authenticate the documents, and perhaps under some
circumstances holding on to the originals may therefore be justified;
but as a general matter, one isn't legally (or ethically) entitled to
keep other people's or entities' physical property, even if one is
free to publish copies of it.
Second, it is illegal to hold on to the physical document, because
that tangible piece of paper is indeed the government's property.
Moreover, it would probably also be unethical to do hold on to those
documents, for the same reason.
My vague sense is that under U.K. law, the government does have
copyright in government-written documents, but I suspect that (as in
the U.S.) copyright is a narrower property right than the physical
right to the documents; reprinting newsworthy copyrighted documents
may under some circumstances be what U.S. law calls "fair use." Also,
it may be the case that U.K. law does prohibit the republishing of
classified documents -- but a newspaper might not feel that ethically
obligated to comply with this law, but might feel ethically obligated
to comply with the law that bars keeping tangible items that belong to
someone else.
So I can't speak with complete certainty here as to what U.K.
journalists are legally obligated to do; but in the U.S., it would
make perfect sense -- both for ethical and legal reasons -- to return
the originals even if one is publishing the copies.
References
1.
http://ussneverdock.blogspot.com/2005/06/britain-downing-street-memos-fake.html
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