A few weeks ago, I was working with Carl Malamud to encourage the University of Michigan to rehost Congressional Hearings material that will be digitized at the Boston Public Library by the Internet Archive, a role which Michigan happily embraced. At that time, I corresponded with good friends at Readex about whether rights claims had ever, to their knowledge, been placed against Hearings or Congressional Records material. Readex has a long history of developing very high quality full-text resources of government documents with powerful search support. I figured their staff would have more informed insight than most principals.

I was thrilled to get a private email from August Imholz, senior staff at Readex (for identification purposes only), summarizing his understanding of this concern. I reproduce it verbatim below.

Disclaimer:

The following discussion is solely the responsibility and opinion of August A. Imholtz, Jr. and does not in any way represent the views, opinion, or official position of his employer, Readex, a division of NewsBank, inc. Mr. Imholtz, although he has had thirty-five years experience in working with U.S. Congressional publications, is not a copyright attorney. He has corresponded with a number of people in Washington, DC about this matter but the opinions expressed below are entirely his own. Should he receive an opinion from the Government Printing Office on these matters, he will share it with Mr. Brantley.

I. Congressional Record: Texts, be they copyrighted or not, may be inserted into the Congressional Record [and this is true of its predecessors, though the further back in the 19th century the fewer instances of such insertions occur] under the protection accorded to spoken remarks on the floor of the Senate or the House. It would be worthwhile to locate specific provisions and interpretation of this privilege in Deschler’s Precedents and Hinds and Cannon on the House side and in Riddick on the Senate side, but I have not done that. Now it is permissible to copy the Record as a whole but not to excerpt from the Record, say Senator XXX's insertion of Brantley’s copyrighted "Horatian Ode on the Sather Gate." For example, LexisNexis and Hein are both producing commercial versions of the Congressional Record, which they legally may do, but one cannot simply excerpt copyrighted verse, newspaper articles, etc. inserted into the Record and republish them out of the context of the Record itself. In other words, an item’s copyright does not lapse even if it receives the great honor of being inserted into the Congressional Record. [By the way, and it is really not all that relevant or interesting to perhaps anyone but myself, in odd moments at the Senate Library I have taken to pulling volumes of the Record off the shelf and looking for verse, most of which seems to have been, at least in the last quarter of the 19th century printed in the remarks themselves rather than in the inserted or additional material.]

II. Congressional Hearings: Copyright material submitted in congressional hearings, which usually will not be read verbatim, if at all, during the course of the hearing, likewise does not lose its copyright status; but the hearing can as a whole be reproduced.

Neither I, nor any of the several people whom I have spoken, can remember any instance in which suit was brought by a copyright holder for replication of his or her material in a hardcopy or microform copy of a Congressional hearing. This is of course not to say that such an event never occurred. A number of firms and institutions have republished and continue to publish Congressional hearings in various media. I was the managing editor for the CIS Congressional Committee Hearings collection, 1833-1969, and do not recall any "reprint" permission ever having been requested. My recollection is that of course copyrighted exhibits were published in the printed versions of Congressional hearings but it occurs in far, far from a majority of the hearings. If I were to guess, I would say for most of the 20th century maybe in 5 percent of the hearings or perhaps a little more. True, in the past several decades that percentage may well be higher for a number of reason. It would be interesting to do a search on the word copyright [not sure most search engines can search the symbol ©] in the full set of Congressional hearings once they are fully digitized.

Important works on copyright are: H.Rpt. 94-1976 Copyright Law Revision, which covers of course the "fair use" issue, and U.S. Code 5678-5679.