Because of the large amounts of data that are submitted to government entities, most entities will likely collect or maintain documents that are subject to a third-party’s copyright. This happens frequently with government entities that solicit bids from outside vendors or contractors. For example, if a government entity solicits bids from a contractor, who submits an architectural plan or drawing in response, the architectural image will be subject to copyright protection.
Copyright protection “springs” into place as soon as the work is created, so authors are encouraged to place the copyright symbol © on their works, but are not required to do so. This means that government entities should pay careful attention to the type of data they collect, because if data qualify as “original works of authorship” under the FCA, the data will need to be treated differently in the case of a data practices request.
If an entity receives a data request for public data that are copyrighted by a third-party, the entity should inform the requester that the data are copyrighted and available for inspection, but that copies cannot be made without the permission of the copyright owner.
Note: This advice applies only if the government is holding a document that is copyrighted by a third-party. If the copyright is owned by a government entity, then the entity cannot prohibit the inspection or copying of government data. See Government-Owned Copyrights.
In Advisory Opinion 08-009, a private, nonprofit corporation submitted a copyrighted manuscript to the Minneapolis Park Board detailing the history of the park system. Because the manuscript was an “original work of authorship,” it was protected by copyright. When the manuscript was submitted to the Park Board, however, it also became public government data, and was thus subject to the Data Practices Act. The Commissioner of Administration opined that the public must be allowed to inspect the document under the Data Practices Act, but because the nonprofit corporation owned the copyright, copies of the manuscript could not be made without the permission of the nonprofit corporation.
