Under the Federal Copyright Act (FCA), the federal government may not copyright any of its original works. This restriction, however, does not extend to state agencies or local governments, and the Minnesota Attorney General has opined that the “State of Minnesota, its agencies, and its political subdivisions can enjoy the intellectual property rights of the Federal Copyright Act.”
Original works and works for hire
For a Minnesota government entity to enforce its copyright, its works must still fulfill the requirements of an “original work” as defined under the FCA. In addition, the FCA specifically states that the copyright owner for “works for hire,” like original works created by an employee for its employer, belong with the employer, not the employee. This means that if a government entity creates a work that is subject to copyright protection, the copyright belongs to the government entity, not the individual employees.
Public access to copyrighted works
A government entity may not use copyright as a reason to deny access to the public. In fact, the Minnesota Attorney General said that entities “may not rely on the FCA to deny citizens either an opportunity to inspect or copy public data.” Therefore, if a government entity wishes to enforce its copyright rights, it may only do so by regulating subsequent use of the data by the public.
Minnesota Attorney General Opinion (Op. Atty. Gen. 315a, Dec. 4, 1995)
A citizen requested to inspect and make copies of maps and other information developed by the Department of Natural Resources (DNR). The DNR told the requester he could view and copy the data, but that any subsequent use, other than personal use, was subject to the DNR’s copyright under the FCA. The requester objected to these stipulations.
The Attorney General’s opinion reconciles the seemingly oppositional requirements of disclosure under the Data Practices Act with the protections of the FCA. A government entity cannot withhold public data, but an entity can place restrictions on subsequent use of the data. Therefore, the requester had the right to inspect, copy, and use the data for personal use, but the DNR had the legal authority under the FCA to control any subsequent distribution and use of that data to third parties.
The opinion clarified that under the FCA, “the agency may use a license or authorization agreement to restrict or condition an individual's authority to make additional copies, to prepare derivative works based upon the copyrighted work, or to distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending.”
Use of copyright by government
The use of copyright protections by government entities, however, is limited by the following:
- The data must come under the scope of “original works of authorship” under the FCA.
- A government entity may not use the FCA to restrict “fair use” of the data. Fair use purposes under the FCA include news reporting, criticism, commenting, teaching, scholarship, and research.
- An entity cannot use the FCA to prevent the inspection or copies of public data. In addition, a government entity may not use copyright as a reason to charge fees in excess of those allowed under the Data Practices Act for copies of government data.
Commissioner of Administration Advisory Opinions
Morrison County electronically maintained property information (public data) on a third-party’s privately owned database (BRC). The County asserted BRC’s copyright of its software to deny a request for electronic copies of the data.
The County chose to maintain its public data in this electronic format, and access to the software was critical to enable access to the data. The Commissioner suggested that the requester enter into an arrangement with the County, through a license agreement or some other mechanism, in order to obtain an electronic copy while protecting BRC’s copyright. That way the County would control subsequent use of the data while still allowing public access.
St. Louis County required users to pay for offsite access to public property and tax information. The subscriber agreement included language that users could not reproduce any information without the County’s prior written permission, claiming federal copyright.
The Commissioner opined that gaining access to data includes both inspecting data and obtaining copies of data. The County cannot use federal copyright to restrict the requester’s right to make copies of the data.