Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Maarten Zeinstra]

I did some further investigating into this. The sources that I and John refer 
to are from 1976, which is pre-Berne (US in force: March 1, 1989). So this 
would further cast doubts on the claims of copyright abroad of the US 
government.

Regards,

Maarten


--
Kennisland | www.kl.nl  | t +31205756720 | m +31643053919 | 
@mzeinstra

> On 01 Aug 2016, at 10:20, Maarten Zeinstra  wrote:
> 
> Hi Cem,
> 
> I believe this was already answered John Cowan, I was proven wrong. US does 
> assert copyright for government works in other jurisdictions. Wikipedia 
> provides these sources:
> 
> “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. There are no 
> valid policy reasons for denying such protection to United States Government 
> works in foreign countries, or for precluding the Government from making 
> licenses for the use of its works abroad.” - House Report No. 94-1476
> 
> and 
> 
> “3.1.7  Does the Government have copyright protection in U.S. Government 
> works in other countries?
> Yes, 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.” 
> http://www.cendi.gov/publications/04-8copyright.html#317 
> 
> 
> However I am not sure how this would work with the Berne Convention, 
> especially article 7(8) which states: ‘[..] the term shall be governed by the 
> legislation of the country where protection is claimed; however, unless the 
> legislation of that country otherwise provides, the term shall not exceed the 
> term fixed in the country of origin of the work.’ If the U.S. term of 
> protection is 0 years, than other countries would also apply 0 years.
> 
> @John, @Cem: do you have some case law about this? I would like to verify 
> this with my academic network in the U.S. If not, any license you want to 
> apply on this material is immediately void (which is only a theoretical 
> problem imo).
> 
> Regards,
> 
> Maarten
> 
> --
> Kennisland | www.kl.nl  | t +31205756720 | m +31643053919 
> | @mzeinstra
> 
>> On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>> > wrote:
>> 
>> I'm sorry for getting back late to this, the lawyer I'm working with was 
>> called away for a bit and couldn't reply.
>> 
>> I asked specifically about this case; in our lawyer's opinion, the US 
>> Government does have copyright in foreign (to the US) countries.  He says 
>> that there is case law where the US has asserted this, but he is checking to 
>> see if he can find case law regarding this to definitively answer the 
>> question.
>> 
>> Thanks,
>> Cem Karan
>> 
>>> -Original Message-
>>> From: License-discuss [mailto:license-discuss-boun...@opensource.org 
>>> ] On Behalf Of Maarten 
>>> Zeinstra
>>> Sent: Sunday, July 24, 2016 7:49 AM
>>> To: license-discuss@opensource.org 
>>> Cc: lro...@rosenlaw.com 
>>> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
>>> Open Source License proposal
>>> 
>>> All active links contained in this email were disabled. Please verify the 
>>> identity of the sender, and confirm the authenticity of all links
>>> contained within the message prior to copying and pasting the address to a 
>>> Web browser.
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
>>> Hi,
>>> 
>>> Yes I am suggesting that if the country of origin of the work does not 
>>> assign copyright to the work then no copyright is assigned world-
>>> wide. My reasoning is that there is no entity to assign that copyright to.
>>> 
>>> An example in a different field might support my argument.
>>> 
>>> In the Netherlands we automatically assign (not transfer, which is 
>>> important here) any IP rights of the employee to the employer if works
>>> are created within the duties of the employee. That means that the employer 
>>> is the rights holder. This rights holder is consequently also
>>> recognised as the rights holder in other jurisdictions. Who might, given a 
>>> similar situation in their own jurisdiction, normally assign the
>>> right to the employee.
>>> 
>>> Now if there is no rights holder to begin with (the U.S. waives it rights 
>>> on government produced works as I understand, the Netherlands
>>> government does 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Maarten Zeinstra]

Hi Cem,

I believe this was already answered John Cowan, I was proven wrong. US does 
assert copyright for government works in other jurisdictions. Wikipedia 
provides these sources:

“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. There are no valid 
policy reasons for denying such protection to United States Government works in 
foreign countries, or for precluding the Government from making licenses for 
the use of its works abroad.” - House Report No. 94-1476

and 

“3.1.7  Does the Government have copyright protection in U.S. Government works 
in other countries?
Yes, 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.” 
http://www.cendi.gov/publications/04-8copyright.html#317

However I am not sure how this would work with the Berne Convention, especially 
article 7(8) which states: ‘[..] the term shall be governed by the legislation 
of the country where protection is claimed; however, unless the legislation of 
that country otherwise provides, the term shall not exceed the term fixed in 
the country of origin of the work.’ If the U.S. term of protection is 0 years, 
than other countries would also apply 0 years.

@John, @Cem: do you have some case law about this? I would like to verify this 
with my academic network in the U.S. If not, any license you want to apply on 
this material is immediately void (which is only a theoretical problem imo).

Regards,

Maarten

--
Kennisland | www.kl.nl  | t +31205756720 | m +31643053919 | 
@mzeinstra

> On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>  wrote:
> 
> I'm sorry for getting back late to this, the lawyer I'm working with was 
> called away for a bit and couldn't reply.
> 
> I asked specifically about this case; in our lawyer's opinion, the US 
> Government does have copyright in foreign (to the US) countries.  He says 
> that there is case law where the US has asserted this, but he is checking to 
> see if he can find case law regarding this to definitively answer the 
> question.
> 
> Thanks,
> Cem Karan
> 
>> -Original Message-
>> From: License-discuss [mailto:license-discuss-boun...@opensource.org 
>> ] On Behalf Of Maarten 
>> Zeinstra
>> Sent: Sunday, July 24, 2016 7:49 AM
>> To: license-discuss@opensource.org 
>> Cc: lro...@rosenlaw.com 
>> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
>> Open Source License proposal
>> 
>> All active links contained in this email were disabled. Please verify the 
>> identity of the sender, and confirm the authenticity of all links
>> contained within the message prior to copying and pasting the address to a 
>> Web browser.
>> 
>> 
>> 
>> 
>> 
>> 
>> Hi,
>> 
>> Yes I am suggesting that if the country of origin of the work does not 
>> assign copyright to the work then no copyright is assigned world-
>> wide. My reasoning is that there is no entity to assign that copyright to.
>> 
>> An example in a different field might support my argument.
>> 
>> In the Netherlands we automatically assign (not transfer, which is important 
>> here) any IP rights of the employee to the employer if works
>> are created within the duties of the employee. That means that the employer 
>> is the rights holder. This rights holder is consequently also
>> recognised as the rights holder in other jurisdictions. Who might, given a 
>> similar situation in their own jurisdiction, normally assign the
>> right to the employee.
>> 
>> Now if there is no rights holder to begin with (the U.S. waives it rights on 
>> government produced works as I understand, the Netherlands
>> government does the same), then no foreign rights can be assigned as well. 
>> Hence the work must be in the public domain world wide.
>> 
>> I have more experience with Creative Commons-licenses than with Open Source 
>> license, but in CC licenses the license exists for the
>> duration of the right. I assume all Open Source licenses are basically the 
>> same in this regard. In that sense it does not matter which license
>> is applied as the license is immediately void, since there is no underlying 
>> right to license.
>> 
>> Finally, in the past I have advised the dutch government to adopt CC0 to 
>> make the public domain status of their works clear. They have
>>