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.
Unconstitutional?
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
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