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.

At the outset, it is important to note that states vary in their approach. Although state works are theoretically copyrightable, the decision about whether to release government works into the public domain is left to the discretion of the states and their agencies, subject to whatever extra limitations state law places on their ability to exercise copyright authority. Every state now has some form of public records statute similar to the federal Freedom of Information Act (FOIA). These laws vary greatly among states, with some discussing copyrights explicitly, some providing for accommodations of commercial use of records, and some silent on both issues. Many states do not explicitly account for government-owned copyrights in their codes. In some states, guidance can be found in laws about disclosure of public records. Other states are quite specific and have statutes directly on point. In such states, the law may give state works strong copyright protections that impact access to or distribution of state records, or, alternatively, the state may choose to have weak copyright protections and give greater deference to access.

This article illustrates the various ways that states have approached the issue. We have selected certain states to serve as examples of how state laws vary. The analysis shows that there is a wide range of approaches taken by states and that although some states’ laws are fairly clear, in other states there is a substantial amount of ambiguity as to what the rules are and whether certain laws are enforceable.

Ambiguous Relationship Between Copyright and Public Access

Most states have no clear law on the subject. New York’s statutory scheme is fairly typical: it fails to specify how state works could or should be copyrighted and how state access laws intersect with copyright laws. What sets New York apart is the fact that the state law has been interpreted by the U.S. Court of Appeals for the Second Circuit; similar laws in other states have not yet been interpreted.

New York

The New York State Library website provides the following guidance:

Every effort has been made to select and present material in the public domain. Some materials, particularly State Agency records, may be protected by copyright laws. The nature of these materials may make copyright difficult or even impossible to determine. When known, information on permissions is noted in the metadata. The Office of Cultural Education, NYS Department of Education, is providing access to these materials for educational and research purposes.6

Such a statement implies that New York is a state that leaves reservation of copyrights to the discretion of the creating agencies. A brief review of various state agency websites supports this interpretation because different entities have very disparate copyright notices. The state senate, for example, provides a Creative Commons license for all of its online materials,7 but the New York State Thruway Authority places an absolute restriction on use for its online content.8

In County of Suffolk, N.Y. v. First American Real Estate Solutions, the Second Circuit considered an assertion of copyright by a New York county for certain tax maps that the county created.9 Although the New York Freedom of Information Law (FOIL) contains policy statements that call for broad disclosure and copying allowances for public records, the Second Circuit held that the FOIL did not abrogate copyrights held by state agencies and subdivisions simply by requiring agencies to allow review and copying of public records.10 The Second Circuit upheld the government’s ability to place copyright-based use restrictions on public records even if they are subject to disclosure under the FOIL.11 In support of this holding, the court relied on two rationales: (1) the policy statement in the FOIL favoring broad disclosure of records does not support an argument for abrogating valid copyrights, and (2) the lack of any accommodation of commercial use in the FOIL is an indicator that the legislature did not intend to affect copyrights or other proprietary interests in public records.12

In light of this holding, agencies in the state have copyrights by default and are empowered to use their own discretion in how to enforce them. As a result, any use of public records from New York requires some consideration of whether copyright principles apply.

Other States

The laws of several other states are equally ambiguous; and without case law interpreting the statutes otherwise, the default assumption should probably be that works are copyrightable and that copyrights may interfere with the use of public records. Massachusetts and New Hampshire, for example, are states, like New York, where the law is absolutely silent on both the copyrightability of state works and any limits on the use of public records. States like Idaho13 and Ohio14 have a couple of statutory references to copyright authority, but the laws are largely ambiguous.

Although the Second Circuit opinion is not binding on all states and although other courts may not follow the same analysis, for now it is the most authoritative opinion available. As a result, other states with similarly ambiguous laws may follow the New York approach. However, there are some states/districts, like Illinois,15 Oklahoma,16 and the District of Columbia,17 where the law is ambiguous yet distinguishable from County of Suffolk. These differences in the laws could be used to argue that state records should not be copyrightable in all cases or that copyrights should not be used to limit the use of public records.

Explicit Assertion of Copyright

Although it is possible that the assertion of copyright may be the default rule in such states where the law is ambiguous, there are some states where the law is not ambiguous at all. Colorado and Pennsylvania, for example, are quite clear in asserting their right to copyright works rather affirmatively in their statutes.

Colorado

The Colorado Revised Statutes include multiple provisions asserting stronger, more clearly defined copyright authority than most states. Two examples are as follows:

  • Colorado Revised Statutes § 2-5-115 requires the Colorado Revised Statutes to be copyrighted under the sole ownership of the state.18
  • Colorado Revised Statutes § 24-72-203(4), part of the state’s open government statute, states that:
[n]othing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record, and the state and its agencies, institutions, and political subdivisions are hereby specifically authorized to obtain and enforce such protection in accordance with the applicable federal law; except that this authorization shall not restrict public access to or fair use of copyrighted materials and shall not apply to writings which are merely lists or other compilations.19


The provision allowing for state statutes to be copyrighted is arguably in conflict with the U.S. Supreme Court’s holding in Banks v. Manchester, which found that it violates public policy to copyright such legally binding products.20 It is unclear whether this Colorado statute would stand up if the state ever tried to assert a copyright over its statutes under this authority.

The final subsection of Colorado Revised Statutes § 24-72-203, the Colorado Open Records Act (CORA), is more problematic for those who want to freely copy state records.21 In effect, Colorado has asserted explicitly through statute what the Second Circuit held regarding the silence of New York’s law,22 i.e., that copyright usage restrictions apply even after disclosure of public records under the CORA. And unlike a state like California where materials can be copyrighted only by specifically authorized agencies, the CORA’s explicit copyright provision clearly applies to the entirety of the open records law.23

Furthermore, Colorado’s law does not seem to require that state agencies need any explicit statutory authority to exercise the described copyright authority. To the contrary, the statute seems to contemplate that all agencies have such authority. Thus, the reservation clause, which states that “[n]othing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record,” is accompanied by a broad authorizing clause, which states that “the state and its agencies, institutions, and political subdivisions are hereby specifically authorized to obtain and enforce such protection in accordance with the applicable federal law.”24

This leads to the conclusion that public records in Colorado, even those subject to disclosure under the CORA, may be subject to a copyright that restricts the use of public records following valid disclosure.

Pennsylvania

In Pennsylvania, all agencies and departments are required to submit records and publications to the Department of General Services, which has the job of copyrighting all government works.25 This weighs heavily in favor of an assumption that all government works in the commonwealth have a valid copyright. Also, Pennsylvania has a statutory provision that explicitly requires a limited class of data to be in the public domain.26 The existence of this explicit “exception” lends weight to the argument that those classes of data not similarly set aside by statute are subject to the general copyright requirements.

Pennsylvania’s freedom of information law, the Right to Know Law, does little to combat this conclusion. Much like New York’s FOIL, the Right to Know Law provides a policy statement favoring disclosure of public documents but does not provide any accommodations for commercial uses or any mention of copyrights. Although Pennsylvania is not bound by the Second Circuit’s decision, the similarities between Pennsylvania law and New York law suggest that the Right to Know Law does not abrogate state copyright claims. This is even more true in Pennsylvania’s case because of the statutory authority given to the Department of General Services. These factors make it probable that use of public records from Pennsylvania is subject to copyright principles.

Limited Copyrightability Requiring Statutory Authorization

Not all states, however, are inclined to allow broad copyright authority over state records. Some states either explicitly or implicitly require specific statutory authorization before an agency or official may seek to copyright a state work or before an agency may refuse to allow access to public records based on a claim that the records are copyrighted. Indiana is an example of a state that requires such authorization explicitly in its state code. California has established a similar rule by court opinion. Florida’s courts have reached a similar conclusion based on their interpretation of the state’s constitution.

Indiana

Indiana’s law is clearer than most on the issue of whether documents created by state agencies are protected by exclusive copyrights. Indiana Code § 5-14-3-3 explicitly states that agencies may not require licenses or copyright royalties for any public record unless there is explicit authority to do so by statute.27 There are at least two such authorizations, one for the State Lottery Commission of Indiana28 and one for the board of the State Museum and Historic Sites Corporation.29 But where there is no explicit statutory authority, copyright principles should not interfere with the use or dissemination of state works.

California

California’s codes contain several provisions for individual agencies authorizing them to exercise copyright authorities to varying degrees. Two examples are as follows:

  • California Health & Safety Code § 130251.15 states that the California Health and Human Services Agency has copyrights on all products made by third parties under contract.30
  • California Education Code § 72207 states: “The governing board of a community college district may secure copyrights, in the name of the district, to all copyrightable works developed by the district, and royalties or revenue from said copyrights are to be for the benefit of the district securing said copyrights.”31

These provisions are significant because a California appellate court in County of Santa Clara v. Superior Court has held that agencies may only assert copyright authority when they have an explicit statutory grant to exercise such authority.32 It is therefore necessary to consider public records individually based on their source agency to know whether any enforceable copyright exists.

Many California websites have the following notice that implies that information appearing on government websites is in the public domain unless specifically stated otherwise:

In general, information presented on this web site, unless otherwise indicated, is considered in the public domain. It may be distributed or copied as permitted by law. However, the State does make use of copyrighted data (e.g., photographs) which may require additional permissions prior to your use. In order to use any information on this web site not owned or created by the State, you must seek permission directly from the owning (or holding) sources.

This notice, in conjunction with the decision in County of Santa Clara, strongly indicates that copyright principles should not interfere with the use or distribution of state documents unless there is specific statutory authority to exercise copyright authority over a particular work.

Florida

Florida law provides both statutory and constitutional authority for open access to public records.33 As a result, the Florida courts have treated public access as a strong, broad right that includes extensive usage rights as a corollary.34 Because of the strong presumption in favor of access, the legislature must provide for exceptions to the public records law explicitly by statute after rather difficult legal hurdles have been met.35

The courts have treated agency copyright authority by statute as such an exception to the public records law.36 Though not an exhaustive list, the following are some agencies that do have specific authority to assert copyright protection over public documents under Florida law: Department of the Lottery,37 Department of Citrus,38 Public Universities,39 Department of Law Enforcement,40 Water Management Districts,41 and Department of State.42 Thus, it is unlikely that the use of state documents can be controlled via copyright principles unless there is specific statutory authority to do so.

Texas

It is worth mentioning Texas as a state where the law may require statutory authorization in order to copyright state documents. Although the statute does not explicitly state such as a requirement, it can be inferred from an attorney general opinion.

Texas has several sections throughout its codes that refer to the authority of agencies to hold and enforce copyrights on their works. An exhaustive list of relevant statutes would be restrictively lengthy, but some agencies that have explicit authority under Texas law are the Department of Health,43 State Preservation Board,44 Water Development Board,45 Department of Motor Vehicles,46 and county governments.47

Texas also has a Public Information Act (PIA) that serves as the state’s freedom of information act.48 Like most acts of this sort, the PIA requires agencies and officials to disclose public records for inspection and personal copying upon request, except in certain enumerated circumstances. The Texas attorney general has specifically articulated an interpretation regarding how the PIA affects copyrights held by the state and its agencies.49 In this opinion, the attorney general stated that, assuming an agency has a valid copyright, such ownership does not serve as an exception to disclosure under the PIA.50 However, the PIA only governs the obligation of government officials to disclose information and does not limit their ability to exercise legal rights associated with copyright subsequent to the initial disclosure.51 An earlier footnote in the opinion seems to imply that the authority to register and enforce copyrights must be provided by statute before such actions may be taken, but that requirement is not explicitly stated.52

In sum, Texas may be a state that requires specific statutory authority before copyright authority may be enforced, but it is possible that a court might find that the default rule applies, meaning that state works are generally copyrightable. In any event, where copyright has been authorized, disclosure under the Texas Public Information Act does not impede the ability of the agency to place use restrictions on the record consistent with the U.S. Copyright Act.

Conclusion

The status of copyright protection for government records and publications at the state level is wildly variable among jurisdictions. One conclusion is certain: For those states examined in this brief survey, none provides a per se exclusion of copyright protection for government works similar to that included in the U.S. Copyright Act. As a result, even in states with laws that favor broad access and usage rights, there is some authority for records to be protected by copyright.

For this reason, any use of state government publications requires some consideration of how copyright principles might apply to the particular record at issue. In some states, state codes offer explicit agency copyright authority. In most states, where the law is essentially silent on the issue, copyright principles could apply and determine permission or whether the proposed use would be “fair use.” In other cases, it may be that the record has been placed in the public domain.

News organizations, whether state press associations or other groups, may consider it useful to work with states to draft a model law or guidelines that provide some clarity on the issue of exactly when and how a state might be permitted to exercise copyright authority. The ambiguities in most state laws, as described herein, leave an uncomfortable level of uncertainty with respect to the use of documents that should be presumptively and intuitively public.

Endnotes

1. 17 U.S.C. § 105.

2. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863).

3. Bldg. Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730, 735–36 (1st Cir. 1980) (“Works of state governments are therefore left available for copyright protection by the state or the individual author, depending on state law and policy, and subject to exceptions dictated by public policy.”).

4. Banks v. Manchester, 128 U.S. 244, 253 (1888) (“[T]here has always been a judicial consensus . . . that no copyright could, under the statutes passed by congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties.” (emphasis in original)); Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 795–96 (5th Cir. 2002) (interpreting the Court’s holding in Banks as restricting copyrights on statutes and ordinances based on the Court’s reliance on state precedent to that effect), cert. denied, 539 U.S. 969 (2003).

5. See County of Suffolk, N.Y. v. First Am. Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001) (holding that tax maps created by county officials could be the subject of copyright protection).

6. FAQ/Help Page for Digital Collections, N.Y. St. Library, http://nysl32.nysed.gov/faq/dcfaq.htm#copyright (last visited Aug. 28, 2012).

7. Copyright Policy, N.Y. St. Senate, http://www.nysenate.gov/copyright-policy (last visited Aug. 28, 2012).

8. Copyright New York State Thruway Authority, N.Y. St. Thruway, http://www.thruway.ny.gov/legal/ (last visited Aug. 28, 2012).

9. 261 F.3d 179, 184 (2d Cir. 2001).

10. Id. at 188–90.

11. Id.

12. Id.

13. See, e.g., Idaho Code Ann. §§ 9-352, 73-210.

14. See, e.g., Ohio Rev. Code Ann. § 149.17 (2012) (allowing copyright of highway maps); Ohio Rev. Code Ann. § 2503.23 (2012) (requiring copyright of state supreme court judicial opinions), and Ohio Rev. Code Ann. § 3383.04 (2012) (authorizing copyrights for the Ohio Cultural Facilities Commission).

15. Certain statutes in the Illinois code contain grants of copyright authority, such as 705 Ill. Comp. Stat. 65/5, which allows for copyright protection of certain portions of judicial opinions, including the facts, syllabi, and notes. It would appear that the inclusion of only certain portions of the opinion is an attempt to avoid trouble with the Supreme Court’s precedent on the matter by not authorizing copyright on the legally binding portions of the opinions. The Illinois attorney general has, at least on one prior occasion, opined that copyright authority exists for the State Board of Education under 105 Ill. Comp. Stat. 5/1A-4. 1976 Op. Ill. Att’y Gen., S. 1070. This is merely an example and does not represent the comprehensive list of agencies with this authority. Taking these facts together, one might conclude that although Illinois does not generally claim any kind of copyright protection in its work products, there are some individual agencies with statutory authority to copyright their products. The presumption in favor of open inspection and copying in the state’s FOIA offers some support for the idea that the state would have some difficulty asserting a copyright without such a statutory grant of authority, though no court in the state has said as much. It is therefore unclear whether statutory authority would be required for an agency to copyright its works, but one could argue that such a requirement should exist.

16. Although Oklahoma does not have a statute that explicitly defines the status of copyrights relative to its Open Records Act, there are some statutes that provide guidance. Okla. Stat. Ann. tit. 74, § 85.60 grants authority to the Department of Central Services to manage the state’s copyrights and patents related to contracts made with private entities. The fact that the section is limited to copyrights based on such contracts leaves an open question as to the status of works created entirely by government entities. This is also the case with the authority granted to the Oklahoma Science and Technology Research and Development Board to own and manage copyrights related to products of private initiatives that receive board funding under Okla. Stat. Ann. tit. 74, § 5060.9. The only specific grant of authority to maintain copyright ownership that is not connected to copyrights that result from interactions between the government and private entities is given to the Oklahoma Lottery Commission in Okla. Stat. Ann. tit. 3A, § 709.

The Oklahoma Open Records Act (ORA) does not provide precise guidance on the status of copyrights for public records subject to public inspection and copying. However, the Oklahoma ORA provides some support for a finding that copyright will not hinder the use of public records disclosed under the ORA. In addition to the basic policy guidance that the statute provides at Okla. Stat. Ann. tit. 51, § 24A.2 (2012), the ORA also specifically accommodates commercial uses (through a requirement of additional fees) and use by news services (by stating that they are not subject to the commercial use requirements). Okla. Stat. Ann. tit. 51, § 24A.5. These statements indicate that use by news sources is contemplated in the ORA and that the only exceptions that will limit such access are those expressly enumerated in the act as subject to privacy or privilege limitations. Because no exception is listed in the statute for copyright enforcement, it is arguable that the agencies could not use copyright to limit access to and use of public records subject to the ORA.

17. The District of Colombia Freedom of Information Act begins with a policy statement that mandates a broad reading of the rights to access of information. D.C. Code § 2-531 (2001). The act does not mention usage restrictions on public records at all. In fact, the D.C. courts have found it improper for agencies to attempt to impose restrictions that are not already in the statute. Dunhill v. Dir., D.C. Dep’t of Transp., 416 A.2d 244, 248 (D.C. 1980). The statute also lacks any explicit authority for any district agencies to exercise copyright authority. Given the lack of statutory authority to exercise copyright and the court rulings barring use restrictions that are not contained in the FOIA, it is arguable that copyright principles cannot bar the use of any agency record. However, it is possible that once the issue is raised, a court could find that the default rule is that ordinary copyright principles apply, particularly given D.C.’s unique relationship to the federal government.

18, Colo. Rev. Stat. § 2-5-115.

19. Id. § 24-72-203(4).

20. 128 U.S. 244, 253 (1888). It is also in conflict with the policies of the U.S. Copyright Office prohibiting copyright of statutes. The Compendium of Copyright Office Practices § 206.03 (1984), available at http://www.ipmall.info/hosted_resources/CopyrightCompendium/chapter_0200.asp.

21. Colo. Rev. Stat. § 24-72-203.

22. County of Suffolk, N.Y. v. First Am. Real Estate Solutions, 261 F.3d 179, 188–90 (2d Cir. 2001).

23. Cf. County of Santa Clara v. Superior Court, 89 Cal. Rptr. 3d 374, 397 (Cal. Ct. App. 2009) (noting that the copyright provision of the California Public Records Act (CPRA) cited by the government only referred to the section on computer software, not to the CPRA as a whole).

24. Colo. Rev. Stat. § 24-72-203(4).

25. 71 Pa. Stat. Ann. § 636 (2002).

26. See id. §§ 954.1 et seq.

27. Ind. Code § 5-14-3-3.

28. Id. § 4-30-3-12 (2011).

29. Id. § 4-37-4-3 (2011).

30. Cal. Health & Safety Code § 130251.15.

31. Cal. Educ. Code § 72207.

32. County of Santa Clara v. Superior Court, 89 Cal. Rptr. 3d 374, 397–99 (Ct. App. 2009). This holding rejects the apparent understanding of the attorney general’s office, which has published resources indicating that it believes that copyright protections apply generally to public records even after disclosure under the CPRA. Office of the Cal. Attorney Gen., Public Records Act Training 82–85, available at http://oag.ca.gov/sites/all/files/pdfs/publications/pra.pdf (last visited Aug. 23, 2012) (indicating the state’s understanding that the Second Circuit’s decision in County of Suffolk and Cal. Gov’t Code § 6254 together support the finding that copyright authorities remain with the state even after disclosure under the CPRA).

33. Fla. Const. art. I, § 24(a) (1992); Fla. Stat. § 119.01 (2002).

34. Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 875 (Fla. 2004) (“A requester’s motive for seeking a copy of documents is irrelevant. Moreover, the fact that a person seeking access to public records wishes to use them in a commercial enterprise does not alter his or her rights under Florida’s public records law.”(citation omitted)).

35. Id. (“The Sunshine Amendment permits the legislature, by two-thirds vote, to enact exemptions for public records, but only after specially defining a public necessity and narrowly tailoring the exemption to that necessity.” (citing Fla. Const. art. I, § 24(c))).

36. Id.

37. Fla. Stat. § 24.105(10).

38. Id. § 601.101.

39. Id. § 1004.23.

40. Id. § 943.146.

41. Id. § 373.608.

42. Id. § 286.031.

43. Tex. Health & Safety Code Ann. § 12.020.

44. Tex. Gov’t Code Ann. § 443.0133.

45. Tex. Water Code Ann. § 6.197.

46. Tex. Transp. Code Ann. § 1001.007.

47. Tex. Loc. Gov’t Code Ann. § 270.009.

48. Tex. Gov’t Code Ann. § 552.001–.353.

49. See Op. Tex. Att’y Gen. ORD-660.

50. Id. at 4.

51. Id. (“Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.”).

52. See id. at n.6.

Advertisement

  • About Our Newsletter

  • Contact Us

  • More Information