anthology, even though the infringer proves that publication of one of the poems was unauthorized. Under this provision, copyright could be obtained as long as the use of the preexisting work was not “unlawful,” even though the consent of the copyright owner had not been obtained. For instance, the unauthorized reproduction of a work might be “lawful” under the doctrine of fair use or an applicable foreign law, and if so the work incorporating it could be copyrighted.
Section 104 of the bill, which sets forth the basic criteria under which works of foreign origin can be protected under the U.S. copyright law, divides all works coming within the scope of sections 105 and 103 into two categories unpublished and published: Subsection (a) imposes no qualifications of nationality and domicile with respect to unpublished works. Subsection (b) would make published works subject to protection under any one of four conditions:
- (1) The author is a national or domiciliary of the United States or of a country with which the United States has copyright relations under a treaty, or is a stateless person;
- (2) The work is first published in the United States or in a country that is a party to the Universal Copyright Convention;
- (3) The work is first published by the United Nations, by any of its specialized agencies, or bythe Organization of American States; or
- (4) The work is covered by a Presidential proclamation extending protection to works originating in a specified country which extends protection to works “on substantially the same basis” as to its own works.
The third of these conditions represents a treaty obligation of the United States. Under the Second Protocol of the Universal Copyright Convention, protection under U.S. Copyright law is expressly required for works published by the United Nations, by U.N. specialized agencies, and by the Organization of American States.
Scope of the prohibition
The basic premise of section 105 of the bill is the same as that of section 8 of the present law—that works produced for the U.S Government by its officers and employees should not be subject to copyright. The provision applies the principle equally to unpublished and published works.
The general prohibition against copyright in section 105 applies to “any work of the United States Government,” which is defined in section 101 as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” Under this definition a Government official or employee would not be prevented from securing copyright in a work written at that person’s own volition and outside his or her duties, even though the subject matter involves the Government work or professional field of the official or employee. Although the wording of the definition of “work of the United States Government” differs somewhat from that of the definition of “work made for hire,” the concepts are intended to be construed in the same way.