Guest Column

Becky Dale


Copyrighting Public Records

Can state and local governments copyright their own public records? The idea may sound crazy, but a General Assembly committee is studying that very issue.


These truths we hold self-evident…" Thomas Jefferson in writing the words of the Declaration of Independence down on paper created an "original work of authorship fixed in a tangible medium of expression." Could he have claimed copyright for it?


The Continental Congress made a few amendments to Jefferson's draft. In making amendments and thus creating a derivative work, would the Congress have infringed on his copyright? Could Jefferson or the Congress have demanded royalties from the newspapers and broadside publishers printing the Declaration?


"That's absurd," you may say. "The Declaration of Independence is a public record. Public records can't be copyrighted." Governmental bodies, however, are claiming copyright in public records.


Look at the websites for state and local governments; quite often they include copyright symbols. One board in New York has successfully sued to uphold its copyright of a tax map. A Virginia legislative committee created this year by House Joint Resolution 6 will be studying issues about electronic public records, including copyright. A subcommittee of Virginia's Freedom of Information Council is now examining issues about Geographic Information Systems, including copyright.


Owners can refuse permission


While copyright law prohibits the federal government from holding copyright in works created by federal officials and employees, it is silent about whether state and local governments can hold copyright in their publications. States commonly do claim copyright. But can they? Should they?


If copyright applies to records related to the transaction of public business, then public bodies would have exclusive rights over copying and distribution, with only fair use not counting as infringement. Copyright owners may say "no" to those asking permission to copy. As the U. S. Supreme Court stated in Fox Film v. Doyal, 286 US 125, 127 (1931), the copyright owner may "content himself with simply exercising the right to exclude others from using his property." Margaret Lane, in Selecting and Organizing State Government Publications (1987), noted that copyright provides "a means of control so that the works will be used in the best interests of government."


If government itself holds copyright, it makes the decisions over copying and distribution, giving it monopoly power over use of the documents. Most copying of public records probably would fall under fair use, but fair use is determined case-by-case; it is whatever the judge in a particular case says it is. If a work is copyrighted, there must be some uses that would infringe; if all uses are fair use, the copyright has no meaning/


Thus, anyone considering using a copyrighted public record has to assess whether it would be judged a fair use and wonder, "Could I possibly be sued?" If officials can sue over copyright, such suits could be used to retaliate against opponents. An incumbent officeholder could perhaps sue his challenger for including a public report in a campaign brochure without permission. An agency could sue a watchdog group for distributing an auditor's report on that agency. Taxpayers would, of course, pay the legal bill for public officials suing to protect copyright; those accused of infringing would have to pay for their own defense. If public records can be copyrighted, those who use them "inappropriately" can be taken to court.


Law is uncopyrightable


At least one kind of public record, the law itself, is uncopyrightable. Federal case law in a series of cases in the 19th century established that statutes, judicial opinions, and regulations may not be copyrighted. The U. S. Supreme Court in Banks v. Manchester, 128 US 244, 253 (1888) said: "The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all…"


In a more recent case, Building Officials & Code Administrators v. Code Technology, 628 F.2d 730, 734 (1980), the 1st U.S. Circuit Court of Appeals put it this way: "The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions." Law is not copyrightable because citizens must know what the law requires of them; no one may hold a monopoly over the law.


Agencies' public records, unlike law itself, are not necessarily binding on citizens but those records do affect governing bodies' decisions and are part of the law-making process. Public records document how laws are carried out. The preamble to Virginia's FOIA states its purpose: "to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government."


Though the 4th U.S. Circuit Court of Appeals has not dealt with a copyright case concerning a Virginia public record, the 2nd U.S. Circuit Court of Appeals has upheld copyright for public record. That court in County of Suffolk v. First American, 261 F.3d 179 (2001) reconciled copyright and New York's FOIL by saying the requestor could get a copy of the public record through FOIL, in this case a tax map, but the county could control subsequent use of it because the county held copyright. The Florida Supreme Court Workgroup on Public Records in its April 30, 2001 report said that "state government works without the force of law do not appear to reach due process considerations." It then reasoned, because Florida's open records law required that records be open for inspection or copying, that copying could be barred as long as inspection was allowed.


Public records sometimes include material written by people outside of government. Copyright in those writings belongs with the author. Further copying and distribution could be infringement, depending on whether the use is considered fair use. In the case of privately authored building codes adopted by local government, the 5th U.S. Circuit Court of Appeals in Peter Veeck v. Southern Building Code Congress, 293 F.3d 791 (2002) ruled that though SBCC retained its copyright, anyone is free to copy the town's version of the codes at will. Because the building codes became part of the law, due process dictates that citizens have unimpeded access to it.


Exclusive control waived by FOIA


Most public records, though, are created by government, and government would be the copyright owner if they can be copyrighted. But maybe government doesn't really have that authority. It can be argued that in enacting FOIA the Virginia General Assembly waived copyright in state and local public records, or at least that it waived claims to exclusive control. Virginia's FOIA mandates that public records shall be open to inspection and copying. Public bodies may not profit on copies supplied for FOIA requests: they may charge only actual costs in "accessing, duplicating, supplying, or searching" for records. Citizens do not have to explain why they want records; records are not released depending on how they will be used.


Because of FOIA, public bodies cannot have exclusive control over the public's use of records. But can they still retain partial control? Can they claim copyright and object to subsequent copying and distribution of the records?


No statutory authority

The answer may lie in whether state code authorizes any such control. The Code of Virginia describes some items the Jamestown Foundation may copyright, and it authorizes the Innovative Technology Council to seek out copyright for scientific and technological items produced by state agencies, colleges and universities, and political subdivisions. The items themselves aren't public records documenting "the transaction of public business" under the definition of public record. State colleges and universities are authorized to set their own copyright policies. Those policies do not cover public records.


The only public records for which the Code seems to authorize copyright are the Code itself and the Administrative Code. Section 30-147 says "All parts of any code … shall become and remain the exclusive property of the Commonwealth to be used only as the [Code] Commission may direct." However, the Code Commission does not claim copyright in the Code of Virginia (conversation with E. M. Miller, Code Commission Secretary, 6/9/04). The Code's publishers cannot claim copyright in anything other than the publishers' own added material. Though the Code Commission contracts with LexisNexis to publish the Code, other companies publish it as well, without needing to ask permission. There aren't many references to copyright in the Code but there are some. If the General Assembly intended for all writings of government, including public records, to be copyrighted, the specific authorizations in the Code for copyright would not have been necessary.




Furthermore, copyright of public records clashes with the purpose of copyright, which is to provide an incentive for authors to create more works so that the base of knowledge will expand. The U. S. Constitution says, "The Congress shall have Power to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright is constitutional only when it meets that purpose. Government needs no incentive to create public records. The records must be created anyway as necessary documents to carry out the public's business. The 2nd Circuit, in Legi-Tech v. Keiper, 766 F. 2d 728, 733, 735 (1983), recognized "[t]he evils inherent in allowing government to create a monopoly over the dissemination of public information" and noted that "the profit motive which is the incentive for creation is also a disincentive for suppression of the work created, a premise of doubtful strength in the case of government." Being supported by taxes, government is not motivated by profits. However, it may sometimes wish to prevent dissemination of certain documents.


Furthermore, Virginia's Public Records Act does not sanction the sale of public records. The State Library Board is charged with issuing regulations on "the creation, preservation, storage, filing, reformatting, management, and destruction of public records." What's not on the list? Sales. A provision on disposition of records states that "No agency shall sell or give away public records." The intention probably is that original documents may not be sold, though the language is broad enough to forbid sales of copies too. If the General Assembly had meant for agencies to make a profit on its public records, it would not have limited charges for copies to the actual cost of making the copies and it would have explained how agencies might go about selling their records. If agencies are not profiting on their public records but still claiming copyright for them, how can they claim to be economically injured when others disseminate the records?


Copyrighting public records also could be unconstitutional because it would hamper political dialogue. The First Amendment protects citizens' rights to speech, especially on political matters. How can one speak unless one has the information to speak about? Easy access to public records undergirds our democracy. Limitations on copying and distributing public records very well could violate the First Amendment.


Copyright in general raises some First Amendment concerns. But there is much more cause for concern when government itself decides who gets permission to reproduce public records and who doesn't, when government decides whom to prosecute for infringement and who not to. While anyone can use an idea without infringing as long as its expression is not copied, the document in its original form has authenticity that paraphrase can't match; that authenticity is important when one is trying to use public records. And while fair use may be a safe harbor, the burden of proof is on the defendant who has to wade through its complexities. Fair use doesn't protect one from being sued and going through a trial. Furthermore, who really owns the records: the government or the people? Why should people be limited to the uses that fall under fair use or have to seek permission to use documents they as taxpayers have already paid for?


Other publications


State and local agencies wouldn't be claiming copyright at all if Congress had barred copyrights to state and local governments as well as to the federal government. Why didn't it? The 1895 Printing Act barred copyright in government publications but that act regulated printing of federal publications so it applied only to the federal government. Extending the ban to state and local publications was briefly discussed at a hearing for the 1909 copyright law. The speakers all agreed that case law was already settled that judicial opinions and statutes were not copyrightable; legislation wasn't necessary to put them in the public domain. It was noted that the Boston library had copyrighted Mr. Sargent's murals.


The 1961 Report of the Register of Copyrights noted that the "judicially established rule" prevented copyright in laws, ordinances, court decisions, and similar official documents but state publications with "historical, technical, educational, and other informational material" could be copyrighted. The current policy of the Copyright Office is that "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar legal documents are not copyrightable for reasons of public policy." Just because copyright law does not bar state and local government from claiming copyright in their publications, it does not mean that they may copyright any publication.


Records in the public domain

The General Assembly could clarify matters by disavowing copyright in public records. How refreshing it would be to see a notice like this on state and government web pages instead of copyright notices: "Records created by Virginia state and local government are not copyrighted and are available for public use." Virginia's public bodies should be commended for putting more records online; citizens should be invited to freely use them.


And no, Thomas Jefferson didn't really copyright the Declaration of Independence. For one thing, copyright law had not been passed yet. Indeed, it is safe to say that he never dreamed that government would claim copyright in its public records. Public records belong in the public domain.


-- August 9, 2004


















Becky Dale is a citizen interested in the Freedom of Information Act. As a volunteer, she collects articles of interest from online newspapers for the Virginia Coalition for Open Government's daily listserv. Her articles on FOIA have appeared in Virginia Review and Virginia Lawyers Weekly.  The Richmond Times-

Dispatch and the Free Lance Star have published her op-eds.  Opinions expressed are her own, not VCOG's.

Her e-mail address is: