Tuesday, July 23, 2013

Are Oak Ridge Photos in Public Domain?

Dear Rich: I am curious as to why a federal government agency can put limitations on its content that it posts on Flickr. I recently ran across the photostream for the Oak Ridge National Laboratory, which is under the Department of Energy. The photos have a Creative Commons restriction. In reading through, my impression is that they are probably covering all bases with this license, but it seems to conflict with its own language. It prohibits commercial use and alteration, but also states that if an item is in the public domain its status is not affected by the license. I feel like if I had found the images on their regular website or image database I would have been interpreting the law correctly in using them as I saw fit (with best practices including attribution). However, this notice gives me a little pause. I am very familiar with photo agencies skirting public domain issues by issuing license restrictions rather than asserting copyright. Is this a similar phenomenon? Could you clarify whether it is ok to use something you know to be in the public domain when a federal government agency uses a Creative Commons license rather than stating that no known restrictions apply? We just re-read our answer, below, and we have to warn you that you should not operate heavy machinery while reading this ... it's kind of sleep-inducing. We can summarize it by saying, the Flickr photos may be public domain but we're not positive. (Zzzz!) We are sure of one thing -- public domain status would trump a Creative Commons license (because a Creative Commons license presumes that copyright exists). In other words if it is PD, you can disregard any CC limitations.
When is it PD? You can't always presume that content prepared under the direction of the federal government is in the public domain. FYI, a 1999 study determined that 15% of the materials offered by government agencies was under copyright. Only a "work of the U.S. government" is in the public domain. That's any work prepared by a federal officer or employee within the course of their duties. The federal government enters into contracts with many independent contractors (non federal employees) and in those cases, the contractor may retain rights under certain situations. Often, the government requires that the material be assigned to the U.S. government under federal acquisition regulations, and it is then, in turn, made PD. This seems to be the case with the Oak Ridge National Laboratory (ORNL) which is managed by UT–Battelle, LLC, a limited liability partnership between the University of Tennessee and Battelle Memorial Institute. In other words, many non-federal employees are contributing to the content at ORNL. The notice at the ORNL site states:
Copyright Status. Documents provided from the web server were sponsored by the U.S. Government under contract DE-AC05-00OR22725 with UT-Battelle, LLC, which manages the Oak Ridge National Laboratory. Accordingly, the U.S. Government retains a nonexclusive, royalty-free license to publish or reproduce these documents, or to allow others to do so, for U.S. Government purposes. Unless otherwise noted, they have been placed in the public domain, although we request the following credit line be used when documents or figures are used elsewhere: “Courtesy of Oak Ridge National Laboratory, U.S. Dept. of Energy."
Although this notice is not a model of clarity -- what does it mean to use the material "elsewhere"? -- it does establish that material at the site is public domain unless noted otherwise. We're not sure whether that applies to the Flickr photostream, supposedly protected under Creative Commons. It is possible that the photos posted there by the Oak Ridge Lab News are protected separately and not subject to the government contract (in which case the only way to be certain is to contact ORNL). If, however, you can find the same photos at the ORNL site and there is no copyright limitation there, you can assume the pictures are PD.
Finally, as to including the notice, “Courtesy of Oak Ridge National Laboratory, U.S. Dept. of Energy," there is no obligation to provide attribution on a public domain photo and there is no indication that you have entered into a licensing arrangement with ORNL to do so. However, a statute does require that if public domain works produced by the federal government are reproduced that some notice should be given as to what is PD.