Wikisource:Copyright discussions/Special discussion for pages tagged as PD-EdictGov

The following discussion is closed and will soon be archived:
{{PD-EdictGov}} is kept; works that misuse the template can be brought up individually at WS:CV. —Beleg Tâl (talk) 15:07, 5 July 2017 (UTC)

Attempted consensus

While the debate over the EdictGov license started long ago in WS:COPYVIO remains open -- others should still weigh-in on it to help foster further discussion and provide some sort of foundation in moving forward -- the sections that follow would be part of the logical next step (if and when) multiple concerns are satisfactorily resolved or theoretically could further fuel the debate over the pros and cons of hosting the type of works in question. For now, its just a basic outline of what might still need attention in either case.

Terms

Some of the relevant elements in play here need to be more "robustly" defined in those instances where the law nor the compendium have provided one that easily or completely translates into a workable policy or set of guidelines.

The list below is comprised of every mention of a specific word or term as found & copied -- in it's entirety-- within Compendiums I, II & III that I could find (redundancy of entries also listed in the ToC or Index were excluded however). Of course multiple variants of one or more terms may appear in the same boxed-section; highlighting of terms have been applied as a result. Note: the section titles are for ease of navigation rather than definitive indicators

edicts of government

"Works in the public domain in the United States cannot be the subject of U.S. copyright protection. Since such works may be copied and used by anyone insofar as the U.S. copyright law is concerned, they may be freely combined with new matter or otherwise incorporated or embodied in compilations or in abridgments, adaptations, arrangements, dramatizations, translations, or other derivative forms. If the new matter contains sufficient original authorship to support a copyright, registration may be based on such new matter. However, in any such case, copyright extends only to the new material and does not imply any exclusive right in the public domain material. Works in the public domain include those whose once valid U.S. copyright has expired and works otherwise dedicated to the public either voluntarily or by operation of law.

Also considered part of the public domain are edicts of government, which are un-copyrightable for reasons of public policy: see section 206.01 below. In addition, works of the U.S. Government, that is, works prepared by officers or employees of the U.S. Government as part of such personal official duties are not copyrightable: see section 206.02 below." Comp.II 202.03

"Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments." Comp.II 206.01

"The copyright law provides that works of the U.S. Government, defined in the law as works prepared by an officer or employee of the U.S. Government as part of that person's official duties, are not copyrightable. This provision applies to such works whether they are edicts of government or otherwise. However, the fact that a copyright may have been transferred to the U.S. Government is not determinative of its status. U.S.C. 101 and 105. Similarly, the fact that the work has been printed by the U.S. Government does not determine its copyright status." Comp.II 206.02

"Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable. In addition, the copyright law specifies that works first published by the United Nations or any of its specialized agencies, or by the Organization of American States, are subject to copyright protection. See 17 U.S.C. 104(b)(3): see also chapter 1100: eligibility. Comp.II 206.03

"Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents, are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments." Comp.II 305.08(d)

"An application we question if the claim appears to extend to any edict of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar legal documents, whether Federal, State, local, or foreign, since such materials are not copyrightable for reasons of public policy. See also section 206.01 of chapter 200: copyrightable matter-in general."

Example: Application is submitted for registration of a work consisting entirely of a State statute.   Registration will be refused. Comp.II 617.02

government edict

"As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. See Banks v. Manchester, 128 U.S. 244, 253 (1888) (“there has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, 8 Pet. 591, that no copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties”); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.) (“no one can obtain the exclusive right to publish the laws of a state in a book prepared by him”).

There is a limited exception to this rule. Section 104(b)(5) of the Act states that works first published by the United Nations or any of its specialized agencies, or first published by the Organization of American States are eligible for copyright protection in the United States.See 17 U.S.C. § 104(b)(5).

A work that does not constitute a government edict may be registered, even if it was prepared by an officer or employee of a state, local, territorial, or foreign government while acting within the course of his or her official duties. For example, the Office may register a tourist magazine written and published by Arizona's department of tourism or a map created and published by the public transit authority for the city of Detroit. Likewise, the Office may register annotations that summarize or comment upon legal materials issued by a federal, state, local, or foreign government, unless the annotations themselves have the force of law. See Chapter 700, 717.1." Comp.III, 313.6(C)(2)

"The U.S. Copyright Office is charged with administering the provisions of the Copyright Act and with issuing regulations for the administration of the copyright system that are consistent with the statute. The Office has no authority to register claims to copyright in works that fall outside the scope of federal statutory protection. Section 102(a) of the Copyright Act states that copyright protection extends only to “original works of authorship.” Works that have not been fixed in a tangible medium of expression, works that have not been created by a human being, and works that are not eligible for copyright protection in the United States do not satisfy this requirement. Likewise, the copyright law does not protect works that do not constitute copyrightable subject matter or works that do not contain a sufficient amount of original authorship. Examples of works that do not satisfy these requirements include the following:

• An idea, procedure, process, system, method of operation, concept, principle, or discovery.
• Facts.
• Research.
• Typeface or mere variations of typographic ornamentations.
• Format and layout.
• Book designs.
• Works that contain an insufficient amount of authorship.
• Names, titles, slogans, or other short phrases.
• Numbers.
• Works consisting entirely of information that is common property.
• Measuring and computing devices.
• A mere listing of ingredients or contents.
• Blank forms.
• Scènes à faire.
• Familiar symbols and designs.
• Mere variations of coloring.
• U.S. government works.
Government edicts.
• Works that are in the public domain.

For a discussion of numbers, research, and book designs, see Sections 707.1 through 707.3 below. For a discussion of other types of works that cannot be registered with the Office, See Chapter 300, Section 313." Comp.III, 707.

A legal publication that analyzes, annotates, summarizes, or comments upon a legislative enactment, a judicial decision, an executive order, an administrative regulation, or other edicts of government may be registered as a nondramatic literary work, provided that the publication contains a sufficient amount of literary expression. Examples of legal publications that may satisfy this requirement are listed below, but in no case does the registration cover any government edict that may be included in the work. See 17 U.S.C. § 105; see also Chapter 300, Section 313.6(C)(2).

Examples:

  • Annotated codes that summarize or comment upon legal materials issued by a federal, state, local, or foreign government.
  • A compilation of legislative enactments or judicial decisions, provided that the author exercised a sufficient amount of creativity in selecting, coordinating, and/or arranging the material that appears in the compilation.
  • Treatises that analyze or review legal subjects.
  • Dictionaries, anthologies, and encyclopedias that define or describe legal subjects.
  • Legal periodicals that cover specific areas of the law, such as law reviews, legal journals, legal newspapers, legal newsletters, and the like.
  • Casebooks containing a selection of legislative enactments and judicial decisions that have been abridged and/or annotated with comments and questions for use in systematic instructional activities.
  • Test materials that are used to determine eligibility for membership in a bar association or other professional organization, as well as study materials used to prepare for such tests.
The Office will consider an application to register a citator containing specialized indexes for tracing the prior and subsequent history of a judicial decision; for identifying decisions that have followed, explained, distinguished, criticized, or overruled a previous judicial decision; or for researching a specific area of the law. This type of work may be registered if it contains a sufficient amount of new text, such as an introduction or a brief summary of the issues discussed in each case. Likewise, a citator may be registered as a compilation, provided that the author exercised a sufficient amount of creativity in selecting, coordinating, and/or arranging the categories that appear within the work. However, the registration specialist may communicate with the applicant or may refuse registration if the claim appears to be based solely on the selection of judicial decisions, because citators typically list all of the subsequent decisions that cite the same case. The specialist also may communicate or refuse registration if the claim appears to be based solely on a system for conducting legal research or on any “idea, procedure, process, system, method of operation, concept, principle, or discovery” that may be reflected or implemented in the work. 17 U.S.C. § 102(b)." Comp.III, 717.1


foreign governments

"Publications of the governments of foreign countries with which we have copyright relations are acceptable for registration.

Exception:
Registration will not be made for statutes, court opinions, and similar official documents which are inherently uncopyrightable in the United States."
Comp.I.,Suppl.9, § 5(d), p. S-19 (or p.394 of 534 of PDF)

see the boxes above

Definitions

gov't edict defined

government edict means

foreign gov't defined

foreign government means

Citations in support

... "The Copyright Office's Circulars and Compendium II should be afforded this lesser deference, or Skidmore deference, so long as the Copyright Office's interpretations do not conflict with the express statutory language of the Copyright Act." 2010 WL 1838874 (S.D.N.Y.), p.6 of PDF.

More important is another citation found in the same case opinion (footnote 8 on p. 11 of the PDF):    <highlighting by GO3>

FN8. As the Court of Appeals noted in Morris, “ ‘the Copyright Office has no authority to give opinions or define legal terms, and [...] its interpretation on an issue never before decided should not be given controlling weight.’ “ Morris, 283 F.3d at 505 (quoting Bartok v. Boosey & Jawkes, Inc., 523 F.2d 941, 946-47 (2d Cir.1975)). Nevertheless, the court found the Copyright Office's interpretation of the Copyright Act set forth in Circular 62 as applied to the registration procedures of serials to be “persuasive.” Id. And, as discussed above, Circular 62 provides that the registration of a serial by a claimant who owns all of the rights in the constituent parts will extend to the constituent parts. Id. at 506.

Citations in opposition

It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public. They should be public all the time, open to review by adversarial courts, and subject to change by an accountable legislature guided by an informed public. If Americans are not able to learn how their government is interpreting and executing the law then we have effectively eliminated the most important bulwark of our democracy. That’s why, even at the height of the Cold War, when the argument for absolute secrecy was at its zenith, Congress chose to make US surveillance laws public.


Without public laws, and public court rulings interpreting those laws, it is impossible to have informed public debate. And when the American people are in the dark, they can’t make fully informed decisions about who should represent them, or protest policies that they disagree with. These are fundamentals. It’s Civics 101. And secret law violates those basic principles. It has no place in America.

Source: Remarks As Prepared for Delivery for the Center for American Progress Event on NSA Surveillance

Practices

The practice should be to avoid applying this rationale altogether for permissions to host a work when ever the opportunity presents itself. Users should check if the work already enjoys the waiving of copyright protections in the country of origin first and foremost.

Using this should be a last resort.

Policy

Delete PD-EdictGov?

Symbol keep vote.svg Keep User:Prosfilaes is right. There's nothing wrong with the PD-EdictGov template. It is valid for use on all edicts of government. If it's used on things that aren't that, that's not the fault of the template. No need to rehash the last debate. Orwell just doesn't get it. That's OK. We don't need to make him get it. --Elvey (talk) 23:52, 10 August 2015 (UTC)

And I think we can count the comments by billinghurst and John Vandenberg there as two {{vk}} as well. --Elvey (talk) 23:57, 10 August 2015 (UTC)

I havent studied this page, so I am not aware of any new arguments presented here, but my vote is very much keep until I am convinced otherwise. If this page has new arguments not raised in prior discussions, I would welcome a very quick overview of them and I will then study this new page, but it wont be quickly ;-) John Vandenberg (chat) 01:24, 21 April 2016 (UTC)

Misuse: If it's used on things that aren't that, that's not the fault of the template

Case in point: we should consider Sentencing_Statement_of_Tarek_Mehanna for deletion. The initial version edit summary is: "As per a Federal court transcript as published by the USGov, and hence in the public domain". But this seems to be a private work, by a convicted criminal. There's a transcript of it, but that makes it a public record; that doesn't make it public domain. There's a difference. --Elvey (talk) 23:59, 10 August 2015 (UTC)

@Elvey, @Kendrick7:, I think specific cases should be listed in the normal manner, using the main CV page. John Vandenberg (chat) 01:40, 21 April 2016 (UTC)
Thanks for the ping, John. I think Elvey is making a distinction without a difference. This was free speech given openly and willingly in a Federal Court. I know this project frowns on America's First Amendment right to free speech, and thinks that there are copyright monsters hiding under every bed. That's still a shame! -- Kendrick7 (talk) 09:07, 1 May 2016 (UTC)
Despite a broad right to copyright, you think that the government should confiscate a copyright if it is used to defend a suspect in open court? That is the opposite of free speech.
It is not legal problems I'm worried about; stuff like this is rarely sued about and reuse generally has broad Fair Use protections. But Wikisource projects may only use Free materials, and even RMS himself, who basically started the Free Software movement, chooses not to license most of his political pieces under Free licenses, because while you may distribute them, you don't have the right to edit them, to make them say something he didn't want them to say. This assumption that a manifesto is Free just because the author wants wide distribution (unproven in this case) is unwarranted.--Prosfilaes (talk) 22:19, 2 May 2016 (UTC)
It would be just the opposite in this case; the U.S. government could overbroadly construe copyright to suppress free speech which it doesn't like, no? Alas, Wikisource keeps self-censoring along those same lines, but there is no reason for it. It continues, in particular, to seem bizarre to me that some editors claim that we shouldn't be allowed to reproduce speech which is in the Federal record and hence falls under {{PD-USGov}}. -- Kendrick7 (talk) 15:01, 5 May 2016 (UTC)
No. Tarek Mehanna has the right to license it however he wants. Copyright is not in any way depriving him of his right to free speech. Copyright does not even, I believe, stop us from posting it; the Wikimedia Foundation, however, demands we not post material under Fair Use, and we do not have the right to take what is Mehanna's and put it under a Free license.
Why don't you sell Green Eggs and Ham on Amazon? After the Suess estate sues you and you (somehow) successfully claim the work of a private citizen becomes PD-USGov after it's read into the Federal Record, we can return to the matter.--Prosfilaes (talk) 21:40, 6 May 2016 (UTC)