Hi All,
Wow. Since yesterday a lot happened.
I had a very long phone conversation yesterday with a very clueful person from the Defense Technical Information Service. There's a lot of information to pass on, and I've let a day go by before writing this down because my schedule got so crazy.
GD, I'll pass her name and contact info on to you in private.
Basically, I've been getting an answering machine for the contact at DLI. We haven't been able to connect yet. It's been frustrating me.
But, the DTIS contact was very interesting.
I gave her the outline of the issue: we are graduates of the courses, we see their value to the general public, the courses were paid for by the US Government and should be in the public domain, and we would like to put them up online for public use.
She's seen this issue before with something less cut-and-dried than our problem. Our problem is that we can't get a definitive answer out of what should be the authority (DLI) on the copyright status of these materials. The answer was disturbing: they probably don't know. The government simply doesn't keep good records on what they purchase for their own consumption. The data on the copyright may be buried in purchase requests and contract payments that they simply don't keep around.
There IS NO central clearing house for government copyright information. In fact, the very casual manner that it is treated is a matter of some concern for persons in her area. They're talking to the government lawyers now trying to get some more cohesive and comprehensive retention of copyright info.
There is also a very infancy stage idea to create a branch like DTIS and DVIS for Training Materials. The older courses for every type of training tend to get forgotten and drop into oblivion after time.
There have been very very recent cases where the government wanted to reprint a training course that they'd paid for, had gone out of use, and thought that they could just reprint again. Everything was set up, then they realized that they didn't have the information on the contract and copyright rights transferral with the original copyright owner. It had been lost. They went back to the copyright owner, and the owner refused to allow the reprint without another contract and payment. That's sort of given a wake-up call to the government to start keeping better records on this sort of thing. (They never pay attention until it costs them money.)
Most of the new language courses being taught at DLI now bear no resemblance to the courses taught in the 1980s or before. There are practically no books. Grammar points are not discussed until you have done the lesson in class and learned the point through conversation and usage. The classes are based off of commercial products and are very teacher dependent. The things that are slipping out from those courses are almost all contract usage.
We can't figure out where the master tapes and books are for the courses or who would have archival copies of the classes. They have to be somewhere, but the DTIS person couldn't get a fix on them. Actually, her computer wasn't making the connection to another government computer directly. A situation that made us both smile wryly.
The other situation that is close to ours is that an individual stationed in the Pacific theater in the 1940s had a complete set of Stars and Stripes newspapers for about 10 years or so. He wanted to scan them in and make them available online. Can you imagine???!!!! Those would have had news items from world and US news, bits and pieces of Service news, and probably a picture or two of interesting things. And the answer? He can't. Because they don't know who holds the copyrights on any of the articles and the Sonny Bono law makes it very risky now to infringe. So, those Stars and Stripes will be lost and thrown away most likely.
There is a law on the horizon that may help (and may hurt in some cases). The orphan works law. Basically, there is a large body of work that is now copyrighted that would not have been copyrighted before. Things set in a tangible medium (like letters to friends) now have implicit copyright. But, often there is no way of knowing who the copyright holder actually is. So, these works can't be published because the copyright owner can't be found. The orphan works law would allow (in certain situations not explicitly mentioned in the abstract that I read) for the release of copyright damages for works where the individual publishing the work has tried to get in touch with the copyright owner. That doesn't mean the owner loses the copyright, but it does mean that if an infringer does so after trying to get in touch with the owner and not being able to, then the infringer won't be liable for damages if the owner later surfaces and complains. (It happens a LOT in the software world when a company goes bankrupt. We call it abandonware.)
The downside to the orphan works law is that Fair Use is suddenly going to start being defined. And it never has been before. That's going to create problems. Some situations will be great. Others won't be. (Libraries actually exist because of Fair Use, by the way.)
What it finally came down to is that the message in the fly leaf of the DLI materials does indicate that we can use the works for non-profit use. But it also mentions reproduction (though in the same breath as "for profit"). We may never get a full answer from DLI about these courses. There are several points to consider here:
1. The date of the work.
2. Was it created by government employees?
3. Was it created by contract for the government?
4. Did it ever have a copyright notice?
5. Does it have a rights assignment in the fly leaf?
Remember, facts are not copyrightable. However, the order the facts are presented in, the fonts used, the flow and organization of the work IS copyrightable.
The flowchart for deciding whether it is in the public domain or not has gotten complicated. This one is the best that I've seen so far, but it omits the Government works.
http://www.benedict.com/Info/Law/Duration.aspx - http://www.benedict.com/Info/Law/Duration.aspx
One thing that is missing from this FSI Languages site is a notice that this is for non-profit uses. The DTIS sees Ebay scalpers raiding her site too. They grab the citations the minute they are posted, then offer them for sale. They also pay to have their commercial listing actually pop up first in Google and other search engines listings. (Scum of the Earth.)
There is a flowchart on these things that I was pointed to to try to help figure out if the work is copyrightable. It looks like many of the older courses may be in the public domain, but there is a bit of uncertainty.
I'd say, to be absolutely safe, anything that has a newspaper-like article in it shouldn't be posted up. Most all of DLI's newspaper articles were gotten from copyrighted sources by permission. That's not going to be perfect protection, but at least some of the glaring copyright issues are satisfied by that. I can live with that.
There are other issues, especially on some of the East Asian languages like Mandarin Chinese. The DLI course used pieces of the Yale University course. Mostly dialogues. That needs a determination that I don't know if we can get.
But, the good news, is that the fly leaf on the 1975/revised 1981 edition of the DLI Modern Standard Arabic course does have the non-profit use statement. AND it further states on page ii that the course was developed and produced at DLI. That's a pretty good smoking gun that it IS in the public domain because it was created by Government employees. Not a 100% answer, but enough that I feel comfortable myself putting these up. Especially for a non-profit use. Further support is that it has no copyright notice, nor any listed authors, and was created prior to 1989 (the first and most substantial version was prior to 1978).
This sounds like it is always going to have a question. But it also sounds like if the DLI courses are in question, so are the FSI ones. The older ones are probably safer. And if they have a non-profit uses rights statement, then all the better.
I've been recording and scanning the MSA course in preparation to the copyright question being sorted out. I'm up to Lesson 20 in audio and the first Volume of the texts. They do omit the Sound & Script portion, so I may have to see if I can create one from materials and resources at hand. There is the FSI Arabic script book. It would be best to have some audio to go with that and some workbooks. I'll see if my friend Ali would record it with me. I can create the workbooks myself.
--Poetry
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