Can States Use Copyright to Restrict the Use of Public Records?

Vol. 29 No. 3

By

Ashley Messenger is an associate general counsel for NPR. Dennis Pitman is a third-year law student at George Mason University.

The U.S. Copyright Act clearly states that works produced by the U.S. government are ineligible for copyright protection.1 This law reflects a sense that it would be inconsistent to give exclusive control and protection to works made by a government that is supposed to be made up “of the people, by the people, for the people.”2 However, this prohibition on copyrightability has not been extended to works created by state or municipal governments.3 Certain works with legal authority created by public servants, like judicial opinions and statutes, cannot be copyrighted at any level of government as a matter of public policy.4 But courts have generally rejected the idea that this public policy rationale extends beyond this narrow set of circumstances to other works created by state or local government employees; as a result, other materials created by state or local governments may be copyrighted.5 This situation has led to some ambiguity regarding how copyright principles intersect with state access laws.

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