Issue:

In his request for an opinion, Mr. Genellie asked the Commissioner to address the following issue:

Discussion:

In Advisory Opinion 00-042, the Commissioner opined:

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 [Attorney General's] 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.

The same analysis applies here. Thus, the City's practice of allowing inspection of copyrighted building plans, but not providing copies without the copyright holder's permission, is allowable under Chapter 13.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: March 27, 2002