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Recent Fair Use Decision on Open-Records Laws and Copyright Protection

The Minnesota Court of Appeals recently added a decision to the small but growing body of law surrounding state open-records laws and copyright protection.

The case is National Council on Teacher Quality v. Minnesota State Colleges & Universities. Here’s the background. National Council on Teacher Quality sent a request under the Minnesota Government Data Practices Act—Minnesota’s open-records act—for copies of course syllabi maintained by the Minnesota State Colleges and Universities, known as MnSCU (and pronounced min-skew). MnSCU responded, saying (1) its faculty members’ intellectual-property rights might be violated by the National Counsel’s later use of those materials, and (2) MnSCU might be subject to liability under the copyright act. MnSCU

National Counsel sued and won. The district court concluded that National Counsel’s proposed use was fair use under the copyright act. Because the proposed use was fair use, the copyright act was no defense to MnSCU’s failure to disclose the syllabi.

MnSCU appealed and lost. MnSCU based its appellate argument primarily on its concern that copying the syllabi might expose MnSCU to copyright liability when National Counsel engages in conduct that does not constitute fair use. The court did not consider whether MnSCU’s copying of the documents itself violates the Copyright Act. The court of appeals held that once fair use is established, Minnesota’s open-records law does not allow an agency to withhold information based on a theoretical, future violation of the Copyright Act.

One amicus brief raised an interesting argument, claiming that even allowing National Counsel to view the syllabi—without copying—would  violate the Copyright Act. The amicus reasoned that the viewing would constitute a “public display” of the authors works and would therefore   violate of the owners’ rights under the Copyright Act. The court noted neither the statute nor cases supported argument that allowing a single party to view a copyrighted work might be a “public display” that would require the copyright holder’s permission.

The court’s case holding is as follows:

A state agency cannot rely on the Federal Copyright Act to refuse to disclose data that is the subject of a request for disclosure under the Minnesota Government Data Practices Act after the district court determines, without dispute, that the requestor intends only “fair use” of the data as defined by the copyright act.

The time to seek review from the Minnesota Supreme Court has not yet run, so this case may not yet be over. Stay tuned.

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Open-Records Laws and Copyright Protection for State and Municipal Data

This past term the Supreme Court decided McBurney v. Young, a case involving a constitutional challenge to the citizen-only restriction of Virginia’s Freedom of Information Act (FOIA). Virginia law allowed citizens of Virginia to inspect and copy all state public records, but the act did not grant non-citizens the same right. The Court had little trouble unanimously ruling that neither the Privileges and Immunities Clause nor the dormant Commerce Clause barred the citizen-only restriction.

Although McBurney involved the copying of government data, it did not discuss the effects of copyright law on that copying. Copyright law governs reproduction. 17 U.S.C. § 106. State open-records laws, like Virginia’s FOIA, govern access to information—i.e, public availability. Open-records laws involve concerns regarding both access and copying, because state and municipal databases may contain information that is in the public domain and information protected by copyright. Public-domain information is information that is not covered by intellectual property rights (e.g., copyright). Black’s Law Dictionary 1265 (8th ed. 2004) (“When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected because part of the public domain and can be appropriated by anyone….”).

It is a common misconception that if government data is publicly available then it cannot be copyrighted. Case law, however, confirms the distinction between public-domain information and publicly available information with respect to open-records laws and copyright. In County of Suffolk v. First Am. Real Estate, 261 F.3d 179, 188-90 (2nd Cir. 2001), the appellate court analyzed the interplay between copyright ownership of municipal maps and open-records laws. The court held that open-records laws do not abrogate a copyright holder’s ownership of the publicly available information.  Id. at 190; accord Weisberg v. U.S. Dept. of Justice, 631 F.2d 824, 825, 828-30 (D.C. Cir. 1980) (records do not lose copyright protection simply because they become publicly available). Some courts hold that the Copyright Act “is not restricted to private parties and there is no reason to believe that such a restriction should be upheld. In fact, the opposite inference is required when only one specific governmental entity, the United States of America, is excluded from the protection of the Act.” E.g., Nat’l Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 35 (N.D. Ill. 1980), aff’d, 692 F.2d 478 (7th Cir. 1982).

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