EPA Communications Stylebook: Authorities and Legal Information Guide

Last revised 2009

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This chapter provides information that is generally applicable to all public communications documents, whether they are printed or only posted on the web. It identifies important reference documents, including government laws and EPA orders, manuals, policies and procedures, and provides information regarding copyright, notices/disclaimers, and web applications. Originators should note especially the information below relating to children's privacy.

NOTE: This Stylebook is, itself, grounded in various authorities of federal statute, EPA administrative orders and federal regulations. They are cited fully in Appendix A and are referenced throughout this manual.

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Authority and Sources of Information

The legislative, regulatory and other formal policy issuances governing EPA communication products and procedures described in this Stylebook are taken from a compilation of sources. For your reference, these numerous sources are listed in Appendix A. The Headquarters Office of Public Affairs has the authority to revise and update the guidance contained in this Stylebook.

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EPA's Office of General Counsel wrote these guidelines because EPA employees often are uncertain about what to do with documents that come to them with copyright notices. However, guidelines are not a substitute for professional legal advice. Because copyright law is complex and situation-based, consult EPA's legal counsel for answers to specific questions.

The use of the symbols TM or SM to indicate a trademark or service mark in an EPA publication is optional. For EPA marks that are registered with the patent and trademark office, the owner can and should display the circled R next to the mark. Energy Star, SmartWay and WaterSense all are registered, and all can display the circled R. Similarly, the owner of the copyright in a work can, but doesn t have to, display the circled C on the work (or the word copyright or other designations to indicate a copyright). In each of these cases, the display of the symbol doesn t effect whether a trademark or a copyright exists. It does effect whether the owner must show actual knowledge or can obtain certain damages in an infringement action. We don t need to display a trademark or copyright symbol when we mention a trade name in our publications.

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The Nature of Copyright

Copyright protection is available to the authors of original works of authorship including literary, dramatic and musical works as well as computer software. Copyright protection for most works subsists from the time a work is expressed in a fixed and tangible form, even if the work does not carry a copyright notice. The author of a copyrighted work (or the author's assignee) has the exclusive right to reproduce, distribute, perform or display the copyrighted work, or to prepare derivative works based on the copyrighted work. An author's copyright protects the author's expression, but it does not extend to facts or ideas contained in that expression. The duration of copyright protection has changed in recent years, but as a rule of thumb, one should assume a work is copyrighted if it was first published less than 75 years ago.

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Government Works

Section 105 of the Copyright Act (17 U.S.C. 105) reads as follows:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Section 101 of the Copyright Act defines a work of the United States Government as follows:

A work of the United States Government is a work prepared by an officer or employee of the Unites States Government as part of that person's official duties. There can be no U.S. copyright in any work prepared by an EPA employee as part of that employee's official duties. For example, if a work is the result of either a specific assignment or is of a nature as to be so closely related to that employee's duties as to be an expected consequence of such duties, there cannot be a U.S. copyright in that work. Accordingly, the Copyright Act cannot be used to restrain dissemination of a work of the United States Government in the United States, by either the work's author or the government.

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Works of Recipients of Assistance Agreements and Contractors

Works by recipients of EPA assistance agreements and EPA contractors are not considered works of the United States Government under the Copyright Act. Under most circumstances, assistance agreement recipients and contractors are allowed to establish copyright in works produced under their agreements with the government.

Copyright in works arising from EPA assistance agreements (grants or cooperative agreements) with institutions of higher education, hospitals and other nonprofit organizations is governed by Title 40 Code of Federal Regulations (CFR), 30.36. Copyright in works arising under grants to state, local and Indian tribal governments is governed by 40 CFR 31.34. The copyright provisions governing EPA assistance agreements allow a recipient of a grant or cooperative agreement to copyright a work without approval from EPA.

Copyright in works arising under EPA contracts is governed by Subpart 27.4 of the Federal Acquisition Regulations (FAR)(48 CFR 27.400-27.409). FAR Data Rights Clause No. 52.227-14, Rights in Data General (48 CFR 52.227-14), is found in most EPA research and development contracts. FAR Clause 52.227-14 provides that the contractor may establish copyright in scientific and technical articles without approval from EPA. However, the FAR clause does require the approval of the Contracting Officer before a contractor may establish copyright in all other data first produced under a contract. In most cases, retention of copyright protection by the contractor is in EPA's best interest in that the copyright provides an incentive for the production, publication and utilization of the work.

In lieu of the above data rights clause, certain contracts for the production or compilation of data may contain the FAR Clause No. 52.227-17, Rights in Data Special Works (48 CFR 52,227-17). Under the FAR's Special Works clause, the contractor agrees not to assert copyright to the work first produced in the performance of the contract without prior written permission of the Contracting Officer. If permission is not granted, the government can obtain copyright by requiring the contractor to formally register for copyright protection and assign the copyright to the government or a designated assignee. Thus, this clause provides a means for the government to obtain copyright in, among other things, compilations of data, including computer software, that is developed under an EPA contract.

Works of individual authors originated while employed by a recipient of an EPA assistance agreement or an EPA contractor are the property of the author's employer. Under Section 201 of the Copyright Act (17 U.S.C. 201), an employee's works are considered works for hire and, as such, are considered the property of the employer. The rights of such employers in their employee's copyrighted work are determined by the applicable assistance agreement or contract regulations discussed above.

The regulations governing contracts provide that when a contractor is permitted to assert copyright in material generated under the contract, the government is vested with a royalty-free, nonexclusive, and irrevocable license throughout the world to reproduce, distribute (except for computer software), perform or display publicly the work, and prepare derivative works from the work by or on behalf of the government. Similarly, although not identically, the regulations governing assistance agreements provide that when a recipient asserts copyright in material generated under an assistance agreement, the government reserves a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use the work for federal purposes, and to authorize others to do.

Updating and revising official government reports or copyrighted compilations of data received under EPA assistance agreements and contracts is sanctioned within the terms of the government's copyright license. Such a revision to an EPA-sponsored report would not alter the copyright held by the EPA assistance agreement recipient or contractor, nor would it change the status of EPA's copyright license in such material.

EPA is also entitled, pursuant to its copyright license, to modify copyrighted materials prepared by EPA contractors. For example, if an EPA Project Officer, in using a copyrighted report, initiates changes that result in a revised final report, such action is consistent with the terms of EPA's copyright license.

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Joint Works of EPA and Non-EPA Employees

When an EPA employee, as a part of his or her official duties, participates as a coauthor of a work, the portions of the work coauthored by the EPA employee are potentially excluded from copyright protection under Section 105 of the Copyright Act (17 U.S.C. 105). Portions of the coauthored work that can be separated from the work of government employees remain copyrightable. When it is anticipated that an EPA employee will participate as a coauthor of a work arising under a contract or assistance agreement, it is advisable to give the outside coauthor notice of copyright restrictions that might apply.

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Use of Copyrighted Materials

Copyrighted material may not be copied or displayed by EPA, or incorporated in EPA documents unless written permission of the copyright owner has been obtained. Prior use of copyrighted material in another government publication does not constitute permission for EPA to use the same material. Also, bear in mind that the absence of a copyright notice or the unpublished status of a work does not establish that the work has not been copyrighted. When permission to use copyrighted material has been obtained and the material is used in an EPA document, the copyrighted material should be identified by the following statement:

Reprinted from (title of publication, year of first publication) by (name of author) with permission of (name of copyright owner).

The National Technical Information Service (NTIS) requires that copyright release letters accompany publications submitted to it for distribution. The following is an example of a letter giving EPA and NTIS permission to use copyrighted material:

Dear :

Permission is given to the U.S. Environmental Protection Agency (EPA) and to the National Technical Information Service (NTIS) to reproduce and sell the document identified below containing the following copyrighted material: (Describe the material; include the title, page number, number of the table(s) or figure(s), and any other identifying information.) The following copyright acknowledgment will be included:

"Reprinted from (title of publication, year of first publication) by (name of author) with permission of (name of copyright owner)."

EPA Document: [Identification of the EPA Document]

The EPA author should, within reason, follow any special acknowledgment wording requested by the copyright owner.

The data rights provisions applicable to both assistance agreements and contracts limit the right of the recipient or contractor to incorporate copyrighted materials in the product delivered to EPA. Prior to inclusion of copyrighted material in work product delivered under an EPA assistance agreement or contract, the recipient or contractor must first obtain the copyright owner's written permission for the government's use of such material. The recipient or contractor is responsible for all necessary paperwork and any fees related to obtaining permission to use copyrighted materials.

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Fair Use Doctrine

The narrowly-construed doctrine of fair use limits a copyright owner's absolute ownership rights. The contours of the fair use doctrine are vague. Section 107 of the Copyright Act (17 U.S.C. 107) instructs that fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Although the Copyright Act does not attempt to define fair use, the statute includes four factors to be considered by courts making fair use determinations. The four factors are as follows:

1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes, and whether the use is transformative;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

Under the first factor, courts focus on two primary issues. First, they consider whether the use is a transformative use that adds something to the work (e.g., literary criticism or scholarship) or whether the use is merely a copy offered as a substitute for the original. Second, the courts consider whether the use is for commercial or nonprofit purposes. A nonprofit use for socially beneficial purposes, while not determinative, weighs in favor of a fair use finding.

Under the second factor, courts find the scope of fair use is greater with respect to factual works than non-factual works. Under this factor, courts have also found that the scope of fair use is much narrower for high-priced newsletters than for inexpensive mass circulation periodicals such as newspapers.

Under the third factor, courts disfavor the copying of entire articles or publications. Courts consider not only the percentage of the original used but also the importance of the portion used. Use of a portion that is the heart of a work is less likely to be considered a fair use.

Under the fourth factor, courts are less likely to find fair use if widespread practice of the challenged use would adversely affect the market for the copyrighted work.

In making fair use determinations, courts are not restricted to the four factors discussed above. In addition, the amount of weight courts assign to each factor varies with the specific circumstances. Accordingly, fair use inquiries are highly fact-specific and do not readily admit to bright line generalizations. For further guidance on questions of fair use, contact EPA's Office of General Counsel.

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Computer Software and Data

Commercial computer software is almost always copyrighted. In addition, computer software is generally sold under software license agreements that provide additional limitations on use of the software. As with other categories of copyrighted materials, permission of the software's copyright owner must be obtained before the software may be copied or otherwise incorporated into an EPA work product. Permission for limited use and copying of computer software may sometimes be found in the software license agreement under which the government purchased the software.

Computer networks and computer bulletin boards facilitate the display and copying of copyrighted materials. Display of a copyrighted work on a computer network or bulletin board infringes the owner's copyright no less than would mass distribution of hard copies of the same work. In addition, display of copyrighted materials on widely accessible computer networks and bulletin boards could subject the government to unforeseen copyright infringement liability. Thus, copyrighted materials should not be displayed on computer networks or bulletin boards unless the copyright owner has given EPA written permission for such display.

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Children's Privacy

Photos taken of children (under the age of 18) in public spaces (e.g., EPA outreach events, EPA facilities, EPA Earth Day activities) will not be disseminated if they contain or are combined with other information that may identify a child or children (name, location, or other personal information). This does not apply to clip art or other widely-used graphics of unidentified children. The use of photos, taken in a protected environment such as a school or hospital, and showing a highly-defined and recognizable image of a child or children that identifies their name, location, or personal information, requires a release; the release must be signed by a parent or guardian. In disseminating photos of children, consider first whether it might create a new vulnerability of unwanted attention for the child(ren).

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Additional Information

For additional information regarding the law on copyright matters, you should contact the Office of General Counsel, Finance and Operations Law Office, at (202) 564-5323.

Notices/Disclaimers

Any notice/disclaimer is to be printed on the front matter of your document.

Draft Products - Preliminary Draft

All draft documents require disclaimers, which should state that the document is in draft, should not be quoted or cited, and has not been subject to required EPA policy and/or technical review. The disclaimer should indicate when the report is planned for official release. The top of each page should be labeled draft document - do not cite or quote. EPA documents in the draft stage should not be cited as references. The following statement should be included:

  • Preliminary Draft Notice
    This document is a preliminary draft. It has not been formally released by the U.S. Environmental Protection Agency (EPA) and should not at this stage be construed to represent Agency policy. It is being circulated for comments on its technical merit and policy implications.

Draft Products - Final Draft

Final draft documents that could become part of a regulatory docket file but are not submitted for a formal public comment period should contain the following notice:

  • Final Draft Notice
    This report is an external draft for review purposes only and does not constitute U.S. Environmental Protection Agency (EPA) policy.

Final Products

If agreement is reached, following review, that a draft product is appropriate for release as an EPA publication, the following statement should be included:

  • Notice
    The U.S. Environmental Protection Agency through its Office of XXXXXXXXXXX (funded and managed) or (partially funded and collaborated) in the research described here under (contract number) or (assistance agreement number) to (name). It has been subjected to the Agency's review and has been approved for publication as an EPA document.

Internal Use

Final documents for internal use by a requesting program office should contain the following notice:

  • Notice
    This document is intended for internal Agency use only.

Journal Articles

EPA encourages independent publication of research results in refereed journals. The article should include the following statement:

  • Notice for Journal Articles
    The U.S. Environmental Protection Agency through its Office of (funded and managed) or (partially funded and collaborated) in the research described here under (contract number) or (assistance agreement number) to (name). It has not been subject to Agency review and therefore does not necessarily reflect the views of the Agency. No official endorsement should be inferred.

Conference Proceedings

In documents such as conference proceedings that include articles by non-EPA individuals expressing their own opinions, a disclaimer like the following should appear:

  • Notice for Conference Proceeding
    The material in this document has been subject to Agency technical and policy review, and approved for publication as an EPA report. The views expressed by individual authors, however, are their own, and do not necessarily reflect those of the U.S. Environmental Protection Agency.

Trade Names and Commercial Products

In all cases where particular companies, trade or service names, product names, or other commercial references are cited, a disclaimer such as the following is essential:

  • Notice
    Mention of trade names, products, or services does not convey, and should not be interpreted as conveying, official EPA approval, endorsement, or recommendation.
  • Notice

    The U.S. Environmental Protection Agency through its Office of (funded and managed) or (partially funded and collaborated in) the research described herein under (contract number) or (assistance agreement number) to (name). It has been subject to an administrative review but does not necessarily reflect the views of the Agency. No official endorsement should be inferred. EPA does not endorse the purchase or sale of any commercial products or services.

Copyright Notices

When permission to use copyrighted material has been obtained and the material is used in an EPA document, the copyrighted material should be identified by the following statement or equivalent:

  • Notice
    Reprinted from (title of publication, year of first publication) by (name of author) with permission of (name of copyright owner).

Documents that contain copyrighted material should include on the Notice page (page ii of the front matter) one of the following statements:

  1. This document contains copyrighted material on pages (list pages), or
  2. This document is copyrighted in its entirety by the author, or
  3. This document is copyrighted in its entirety by the author.

In addition, it contains copyrighted material from sources other than the author on pages (list pages).

Copyright Announcement

If assistance agreement recipients or contractors copyright their work, they should use the copyright announcement so that the project officer knows that permission is required if someone outside the government wants to use the document. The announcement should contain the symbol or the word Copyright, the year of first publication of the work, and the name of the owner of copyright in the work.

  • Example: 1995 John Doe

Notices for Products Produced by Post-Doctoral Program Employees

A credit statement similar to the following should be included with the author/affiliation credit:

  • Work was performed at the (L/C/O), U.S. Environmental Protection Agency, (Location), through participation in the (sponsoring organization) Postdoctoral Research Program.

Notice for Reports

  • Example Notice
    The U. S. Environmental Protection Agency through its Office of (funded or managed the work) funded the research described here. It has been subject to Agency review and approved for publication. This research was supported in part by an appointment to the Postdoctoral Research Program at the (Laboratory where the work was done), administered by the Oak Ridge Institute for Science and Education through Interagency Agreement No. (____) between the U. S. Department of Energy and the U. S. Environmental Protection Agency.

Notice for Articles Published in Refereed Journals

  • Example Notice
    The U.S. Environmental Protection Agency through its Office of (funded the work) funded the research described here. It has not been subjected to Agency review and therefore does not necessarily reflect the views of the Agency, and no official endorsement should be inferred. This research was supported in part by an appointment to the Postdoctoral

    Research Program at the (Laboratory where the work was done), administered by the Oak Ridge Institute for Science and Education through Interagency Agreement No. (____) between the U.S. Department of Energy and the U.S. Environmental Protection Agency.

Foreign Government's Copyright Notice

Although employees of the U.S. Government who write documents as part of their official duties cannot claim copyright in the work in the United States, the national copyright law of another country might allow the document to be copyrighted. Therefore a copyright notice should be as follows:

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

Web Server and Multimedia Products

The EPA Web Server and most Agency multimedia documents should carry a Disclaimer of Endorsement and a Disclaimer of Liability. These disclaimers address references to commercial products and services, as well as merchantability and fitness for purpose. Sample disclaimers can be found on the EPA Web Guide Sample Disclaimer Templates page.

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Authorities: Internal and External

The legislative, regulatory and other formal policy issuances governing EPA communication products and procedures described in this Stylebook are taken from a compilation of sources. For your reference, these numerous sources are listed in Appendix A. The Headquarters Office of Public Affairs has the authority for revising and updating the guidance contained in this Stylebook.

With regard to print and web publishing, Title 44 of the United States Code constitutes the broad legal framework for all Government publishing. Three basic provisions of Title 44 deal with the authority of the Joint Committee on Printing (JCP) of the Congress of the United States and the U.S. Government Printing Office (GPO) as described below.

  • The JCP has broad authority to regulate the printing and distribution of publications by Government agencies. The JCP issues the Government Printing and Binding Regulations, a document whose directives govern the procurement and distribution of all Government printing. With limited exception, all printing, binding and blank book work for the Government is to be done at the GPO or in authorized departmental printing plants or procured through GPO-contracted sources.
  • The Public Printer (head of the USGPO), through the Superintendent of Documents (SOD), is authorized to print additional copies of any nonconfidential Government publication for sale to the public.
  • The USGPO administers the Depository Library Program. Through this program, over 1,700 depository libraries throughout the United States receive Government publications free of charge. The GPO determines what publications should be distributed through the Depository Library Program for orders placed through GPO and its contracts, and bears the printing and binding costs of the depository copies.

It should be noted, however, for products produced independently of the GPO, i.e., by in-house copy centers or desktop office printers, agencies are required to make the determination and bear the printing costs of copies for depository library distribution.

In order to fulfill the requirements of Title 44 and associated OMB Circulars, EPA established numerous procedures, policies and directives. This Stylebook provides guidance on how EPA employees can meet these requirements.

The government may be subject to liability for misuse of the literary or intellectual property (patents, trademarks, proprietary information) of others. Writers and editors should observe the guidelines given in this section.

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