Discussion:

The Cable Commission, a government entity for purposes of Chapter 13, administers the cable television franchises granted by its member cities, but it does not produce or own the programs cablecast on the system. Given the requirements of Chapter 13, this places the Cable Commission in an unusual position with the potential to present very difficult issues. The issue here is one.

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are presumed to be public unless otherwise classified under state or federal law. Pursuant to section 13.02, subdivision 7, government data are all data collected, created, received, maintained or disseminated by a government entity.

In his comments to the Commissioner, Mr. Creighton did not state clearly whether the Cable Commission is in possession of a videotape copy of the program requested. If it is, then pursuant to section 13.02, subdivision 7, the videotape constitutes government data. The Commissioner is unaware of any provision of state or federal law that would classify the tape as anything other than public. Minnesota Statutes, section 13.03, subdivision 3, provides that an individual has the right to inspect and obtain copies of public government data.

Mr. Creighton stated that the programs cablecast over the system overseen by the Cable Commission are owned and copyrighted by the producers, and therefore, the Cable Commission could not provide Mr. Wratkowski with either a copy or an opportunity to inspect (view) the program.

The issues arising from situations in which government entities claim copyrights, or enter into agreements with private entities that grant intellectual property rights in government data to the private parties, are nascent. The Minnesota Attorney General issued an opinion to the Minnesota Department of Natural Resources on December 4, 1995, that addressed a situation in which a government entity wanted to exercise its intellectual property rights in certain data it developed. That opinion reads, in part:

[Government entities] may not assert copyright ownership to deny members of the public their right to inspect and copy public government data at reasonable times and places under [Minnesota Statutes section 13.03, subdivision 3.]

The Opinion also states:

It therefore is reasonable to conclude that a state legislature can forfeit any part of that federal bundle of rights should it deem such waiver to be in the public interest. The state cannot forfeit those rights on behalf of third parties, however, so state agencies who acquire original works of authorship from third parties cannot be compelled by the MGDPA to violate federal prohibitions on copyright infringement. To the extent then that compliance with the MGDPA would compel an actual violation of the FCA, and subject the State to liability, the FCA controls. See, e.g., Chavez v. Arte Publico Press, 59 F.3d 539 (5th Cir. 1995).

In relevant part, the Federal Copyright Act, Title 17, U.S. Code, provides that the owner of a copyright has the exclusive right to: reproduce the copyrighted work in copies; and distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. (See 17 U.S.C. section 106.)

The Attorney General's opinion relates to a government entity asserting copyright ownership of data it developed. Although this situation doesn't involve government ownership of copyrighted materials, it is clear that the Attorney General's opinion regarding the protection of public access to copyrighted materials, regardless of who produced them, is relevant in resolving the conflicts between Chapter 13 and the Federal Copyright Act.

Mr. Creighton failed to demonstrate how it would violate a producer's copyright if the Cable Commission simply allowed Mr. Wratkowski to inspect the program in question. Accordingly, the Cable Commission may not deny public access to public government data for the purposes of inspection on the basis that it does not own the copyright to the data. If the Cable Commission maintains a copy of the program, it should provide Mr. Wratkowski an opportunity to inspect it.

The requirements of the Federal Copyright Act lend support to the Cable Commission's position that it cannot supply a copy of the program. We accept that position. We acknowledge that this conclusion appears contrary to a basic tenet of Chapter 13, that, with few exceptions, a person may obtain a copy of public government data. However, to the best of our knowledge, this question has not been answered definitively, and the issue otherwise remains unsettled.

Accordingly, the Cable Commission may not deny public access to public government data for the purposes of inspection on the basis that it does not own the copyright to the data. If the Cable Commission maintains a copy of the program, it should provide Mr. Wratkowski an opportunity to inspect it. The Cable Commission need not supply a copy to Mr. Wratkowski, however.

If the Cable Commission does not maintain a copy of the program, the question remains whether it should, pursuant to the requirements of section 15.17, the Official Records Act, and section 138.163 et seq., the Records Management Act.

Section 15.17, subdivision 1, provides: [a]ll [government entities] shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Pursuant to section 138.17, subdivision 1, government records are defined to include all . . . data, information, or documentary material . . . made or received by an officer or agency of the state . . . pursuant to state law or in connection with the transaction of public business by an officer or agency . . . .

There is no relevant case law upon which to rely for guidance as to whether a copy of the program is a record for purposes of sections 15.17 and 138.17. Mr. Creighton stated that it would be physically and economically impossible for the Cable Commission to maintain copies of all the tapes submitted for playback, but he did not address the records retention requirements of sections 15.17 and 138.17.

Given that there is little guidance available, the Commissioner acknowledges that the question of whether a videotape copy of the program is a record for purposes of sections 15.17 and 138.17 could be argued either way. However, it seems to us a more reasonable position that it is not.

According to Mr. Creighton, the Cable Commission was created to administer the cable television franchises granted by the member cities. Apparently, the Cable Commission primarily manages facilities to provide support to independent program producers; it neither produces nor owns the content of the programs cablecast on the system. Presumably, the Cable Commission maintains a record of the programming cablecast over the system, which would meet the requirements of sections 15.17 and 138.17. However, in our view, copies of the actual programs cablecast are not official records that the Cable Commission is required to maintain under sections 15.17 and 138.17. Accordingly, if the Cable Commission does not maintain a copy of the videotape in question, it is not obliged to secure a copy for Mr. Wratkowski's inspection.

Another question unanswered by the information provided is whether there is any contractual agreement between the Cable Commission and the producers of the programming it broadcasts. If so, the producers are potentially subject to Chapter 13 regulation. When a private person has a contractual relationship with a government entity, there are certain situations in which the private entity itself, or the data created or collected by the private entity as part of fulfilling its contractual obligations, may be subject to Chapter 13. (See section 13.05, subdivisions 6 and 11.) If that is the case here, then Mr. Wratkowski could gain access to a copy of the program from the producer, according to the requirements of section 13.03.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Wratkowski is as follows:

Signed:

David F. Fisher
Commissioner

Dated: October 16, 2000