When Does Copyright Apply to Public Records?

Answer

The question of whether a California agency can refuse to provide (or permit members of the public to make) a copy of a public record on the grounds that a third-party owns a copyright interest in the record is an interesting one.

The PRA exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law,” Gov’t Code § 6254(k), which presumably includes the federal Copyright Act.  The issue seems to be whether the Copyright Act prohibits a state agency from making (or permitting a member of the public to make) a copy of a particular record in which a third party owns a protectable copyright interest.

I am not aware of any California cases that answer the question, but a 1981 California Attorney General opinion concluded that a school could “refuse to honor a request pursuant to the California Public Records Act copyright infringement or where it would place an unreasonable burden on the school authorities to provide such a copy in compliance with copyright restrictions.”  64 Cal. Op. Att’y Gen. 186 (1981).

The opinion noted, however, that: it may be possible to comply with the California Public Records Act copyright. For example, it would not be an infringement of a copyright to provide a person with a particular copy of copyrighted material if the copy has been purchased by the public agency. (17 U.S.C. § 109, subsection (a).)

Additionally, reproduction of copyrighted material under certain limited circumstances may fall within the ‘fair use’ exception to copyright restrictions. (17 U.S.C. § 107; Key Maps, Inc. v. Pruitt (S.D. Tex. 1978) 470 F.Supp. 33 (county fire marshall’s reproduction and distribution of copyrighted fire zone maps held to constitute ‘fair use’ in view of public interest in dissemination of maps for fire prevention purposes).)

Note that in the context of Washington’s public records law, the Washington Supreme Court said that copyright law did not permit an agency to refuse to provide copies of site and drainage engineering drawings for proposed residential developments, which were requested for use in preparing comments and criticism of the proposed development in public hearings. Lindberg v. Cty. of Kitsap, 133 Wash. 2d 729, 747, 948 P.2d 805, 814 (1997).

The decision was based on a fact-intensive analysis of whether the proposed use of the copy would constitute fair use under copyright law. Lindberg did not address the issue of whether it was problematic for an agency to inquire into the purpose for which a record is requested in determining whether to disclose it, which would seem to be a relevant consideration under California’s Public
Records Act.

Another conceptual approach to dealing with copyright in public records might be that the government’s copying (or allowing a member to copy) public records to comply with the PRA is a fair use under copyright law, but that the requester’s use of the records remain subject to third-party copyright interests.  Under that framework, the record has to be disclosed as a public record, but the requester could potentially be liable to the copyright owner for uses of the record not considered fair use.  I am not aware of any authority adopting this approach.

California Health & Safety Code §§ 19850-19851 might also be relevant to the particular situation you describe.  Section 19850 provides that California’s city and county building departments must maintain an official copy of the plans of every building for which the department issued a building permit.  Section 19851 provides that those copies must be open to inspection but may not be duplicated in whole or in part except:
(1) with the written permission, … of the certified, licensed or registered professional or his or her successor, if any, who signed the original documents and the written permission of the original or current owner of the building, or, if the building is part of a common interest development, with the written permission of the board of directors or governing body of the association established to manage
the common interest development, or
(2) by order of a proper court or upon the request of any state agency.
Note, though, that § 19851(b) requires that:
“[a]ny building department of a city or county, which is requested to duplicate the official copy of the plans maintained by the building department, shall request written permission to do so from the certified, licensed, or registered professional, or his or her successor, if any, who signed the original documents and from
(1) the original or current owner of the building or
(2), if the building is part of a common interest development, from the board of directors or other governing body of the association established to manage the common interest development.”
To the extent particular building plans are subject to copyright owned by someone other than those identified in § 19851(b), however,
the Attorney General opinion, 64 Cal. Op. Att’y Gen. 186, suggests that copyright might be considered a viable alternative basis for refusing to permit a copy of the plans.

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