Turner-Fairbank Highway Research Center R&D Communication Reference Guide

APPENDIX O. FREQUENTLY ASKED QUESTIONS (FAQs) ABOUT GENERAL COPYRIGHTS AND COPYRIGHT AND COMPUTER SOFTWARE UNDER FEDERAL CONTRACTS

For more information, see Title 17 of the U.S. Code and the Federal Acquisitions Regulations.^(39–43)

1. Q: What is copyright?

A: Copyright is a legal protection for authors of original works of authorship. Copyright law protects a variety of works, including literary works, artistic works, and other intellectual works such as computer software.

2. Q: What rights does copyright provide?

A: Generally, the Copyright Act of 1976 gives the author the exclusive right to do, and to authorize others to do, the following: copy the work, prepare derivative works based on the work, distribute copies of the work to the public, perform the work publicly, and display the work publicly.

3. Q: How is copyright different from other forms of intellectual property?

A: Copyright differs from patents and trademarks in both the terms and kind of coverage that is granted. Patents protect new inventions such as processes, machines, manufacturers, and compositions of matter. Trademarks protect words, phrases, symbols, and designs. Trademarks also identify and distinguish the source of goods or services of one party from those of another, such as logos or names of products or organizations.

4. Q: What is public domain?

A: Works that are not protected by copyright and are publicly available are considered to be in the public domain. They may be used by anyone, anywhere, anytime without permission, license, or royalty payment.

A work is not in the public domain simply because it does not have a copyright notice. In addition, just because a work is included in a U.S. Government work with permission does not mean the private work is not copyrighted. The user is responsible for figuring out whether a work is in the public domain or not and should make sure to read the permissions and copyright notices.

5. Q: Does the copyright law apply to materials on the Internet or the Web?

A: Yes, the Internet is another form of publishing or disseminating information, and copyright can apply to websites, email messages, Web-based music, etc. Works found on the Internet are not automatically in the public domain.

6. Q: What is a U.S. Government work?

A: Any work prepared by an employee of the U.S. Government as part of that person’s official duties is considered a U.S. Government work. Contractors, grantees, and certain categories of people who work with the Government are not considered Government employees for purposes of copyright. An employee’s official duties are the duties assigned to the individual as a result of employment.

7. Q: Can U.S. Government work be copyright protected?

A: No. Copyright protection is not available for any work of the U.S. Government, but the United States is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

8. Q: Are all U.S. Government works publicly available without any restrictions?

A: No. Certain statutes, such as the Freedom of Information Act, provide the Government with authority to restrict access to U.S. Government works for purposes of national security, export control, the filing of patent applications, etc. In addition, for the purposes of specific agreements, such as Cooperative Research and Development Agreements, the Government has statutory authority to withhold from public dissemination certain Government-produced information for a specified period of time.

9. Q: What should I pay attention to in deliverable materials submitted by contractors?

A: Contracting Officers and Contracting Officer Representatives should become familiar with contract deliverables and make sure written deliverables include clauses establishing the data rights that FHWA received when it accepts a final written product from the contractor.

Please see the data rights FAQs for data rights clauses that FHWA should include in order to provide the FHWA with a broad license to use the data for certain Federal purposes.

10. Q: What is the difference between proprietary software and open source?

A: A copyright owner has a proprietary license that typically restricts a licensee’s rights to modify, prepare derivate works, and distribute the computer program. However, for open-source software, a user receives a license that allows them to use, modify, and redistribute the original source course and/or modified versions (derivative works).

Many different open-source licenses exist, so please contact the FHWA Office of Chief Counsel if you have any questions regarding open source software. In addition, the Commerce, Energy, NASA, Defense Information Managers Group (CENDI) document from October 1, 2010, on the SharePoint site thoroughly explains the basics of open-source software.

11. Q: How do the Federal Acquisitions Regulations address open-source software?

A: The Federal Acquisitions Regulations treat open-source software as “commercial software” that would be licensed to the Government under the same terms as licensed to the public.

12. Q: When do I need a license or written permission to use art, software code, figures, graphs, charts, illustrations, standards, drawings, etc.?

A: You must obtain a license or written permission to use, publish, or distribute any art, software code, figures, graphs, charts, illustrations, standards, drawings, photos, etc., unless one or more of the following conditions are met:

• An FHWA employee developed or created the art, software code, figures, graphs, charts, illustrations, standards, drawings, photos, etc., during the course of their work at FHWA, and therefore the work is in the public domain.

• An employee of another Federal agency developed or created the art, software code, figures, graphs, charts, illustrations, standards, drawings, photos, etc. during the course of their work at another Federal agency, and therefore the work is in the public domain.

• The art, software code, figures, graphs, charts, illustrations, standards, drawings, photos, etc., are part of a contract deliverable, which either transfers the copyright ownership to FHWA or provides the work to the government with unlimited rights or with a license (written permission) to FHWA to use it for the purpose and in the manner you require.

• FHWA already purchased a license to certain rights from the copyright owner to use the art, software code, figures, graphs, charts, illustrations, standards, drawings, photos, etc., for the purpose and in the manner you require.

13. Q: Do I need a license (written permission) to use, publish, or distribute figures that are developed or created by an FHWA employee or an employee of another Federal agency?

A: No. Works created by Federal Government employees within the scope of their jobs are not subject to copyright.

14. Q: Do I need a license (written permission) to use, publish, or distribute art, software code, figures, graphs, charts, illustrations, standards, drawings, etc., that are developed by a Federal contractor under a contract?

A: Yes. The rights in data clause or another clause within the contract statement of work, as well as the deliverable itself, will specify whether FHWA owns a copyright or a license to the art, software code, figures, graphs, charts, illustrations, standards, drawings, etc. Here are common scenarios you might encounter:

• Contractor transfers ownership of a deliverable: No additional written permission is needed when the contract states that there is a clear transfer of ownership of the art, software code, figures, graphs, charts, illustrations, standards, drawings, etc., to FHWA. In this case, since the ownership or copyright is transferred to FHWA, it may be used for any purpose by FHWA.

• Contractor provides unlimited rights to a deliverable: Except for works in which the contractor asserts claim to copyright, the Government has unlimited rights in all data first produced in the performance of a contract and all data delivered under a contract unless provided otherwise in the contract. Unlimited rights means FHWA may use, disclose, reproduce, prepare derivative works of, distribute copies to the public, and perform publicly and display publicly (including posting the work to a public website), in any manner and for any purpose and to have or permit others to do so. No additional written permission is needed when the contract states that FHWA has unlimited use of the art, software code, figures, graphs, charts, illustrations, standards, drawings, etc., to FHWA.

• Contractor asserts copyright in a deliverable: In general, the Government’s license is a nonexclusive, irrevocable, worldwide license to use, modify, reproduce, release, perform, display, or disclose the work by or on behalf of the Government. The Government may use the work within the Government without restriction and may release or disclose the work outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the work on behalf of the Government. The Government’s license includes the right to distribute copies of the work to the public for Government purposes. Under some contract data rights clauses, if the work is a computer program, the right to release or disclose the computer program to the public is not included in the Government’s license.

• Contractor does not provide FHWA with a copy of the work: Without the work, such as an image or illustration or software code, FHWA will not have any license or ability to use the work.

15. Q: When do I need to provide attribution or include a “©” and the artist’s or author’s name in materials that I plan to distribute or publish?

A: You should provide attribution for any item that is copyrighted and that FHWA obtains a license to use. For works created under contract that are copyrighted, you should include the following language for those materials:

COPYRIGHT STATUS: This work, authored by ______________ employees, was funded in whole or in part by _________________ under U.S. Government contract _______________, and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.

No attribution or copyright citation is needed for works of the U.S. Government; however, it is often helpful to the public to include the following for those materials:

This is a work of the U.S. Government and is not subject to copyright protection in the United States. Foreign copyrights may apply.

16. Q: How do I determine who owns a graphic?

A: You may do one of the following actions:

• Review the contract language.

• Research the graphic and try to contact a current user or a creator of the graphic.

• Ask the legal office or contractor when in doubt.

17. Q: May I use, publish, or distribute a graphic if I have tried to communicate with the person who owns art, software code, figures, graphs, charts, illustrations, standards, drawings, etc., or if the owner is not responding to my request to use the graphic?

A: No. You must find other pieces of art, software code, figures, graphs, charts, illustrations, standards, drawings, etc.

18. Q: When asking for permission to use a figure in my publication, what do I need to ask the owner of the figure?

A: Use the form created by HRTM-20 and the legal office. It contains language that gives FHWA a license (written permission) to the material and includes a signature line.

19. Q: I found art, software code, figures, graphs, charts, illustrations, standards, drawings, etc., on the Internet that I would like to use in a publication. Do I need permission?

A: Yes. As stated above in FAQ #5, materials found on the Internet are not necessarily in the public domain, even though they can be accessed by the public. You must receive a license (written permission) from the person(s), company(ies), or organization(s) that own the art, software code, figures, graphs, charts, illustrations, standards, drawings, etc.

20. Q: These illustrations were created by a contractor while under contract with FHWA. Do I need to get permission from the contractor to use the illustration?

A: Maybe. If the illustration was part of a contract deliverable, then you will need to consult the contract data clause and possibly the FHWA Office of Acquisitions or Office of Chief Counsel to determine what FHWA’s rights are.

Although FHWA may be able to reuse the illustration for certain uses, the license may restrict other uses. The agency will also likely need to provide attribution and indicate under the illustration a copyright “©” if the contractor claims ownership in the illustration.

21. Q: Do maps require permission for use?

A: Maybe. FHWA is permitted to use maps without permission from Google Maps™ or other maps as long as the agency does the following: 1) the agency reviews the licensing for usage and 2) the person using the map in a publication abides by the licensing agreement and clearly indicates the map copyright owner(s) for every map. Prior to using any map, consult HRTM or the Office of Chief Counsel with the legal licensing language for review.

22. Q: Can facts, databases, and compilations be copyrighted?

A: Facts cannot be copyrighted, but the creative selection, coordination, and arrangement of information and materials forming a database or compilation may be protected by copyright. Note, however, that the copyright protection only extends to the creative aspect, not to the facts contained in the database or compilation.

23. Q: Where can I find more information on this topic?

A: Please search FHWA’s Intellectual Property SharePoint site for more useful resources. The legal office particularly suggests that researchers and contract office representatives read all the Commerce, Energy, NASA, Defense Information Managers Group (CENDI) documents.