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November 14, 2000

 

FOIL-AO-12385

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear

As you are aware, I have received your letter of October 6 in which you raised a series of
questions concerning the ability of units of state and local government in New York to copyright
records they produce. You referred to a statement by Counsel to the American Society of Newspaper
Editors, Mr. Kevin M. Goldberg, in which it was suggested that "state and local government can
claim copyright in official documents", with certain "minor exceptions."

In this regard, I am not an expert on the subject of copyright, and I cannot offer specific
information in response to many of your questions. It appears, however, that your inquiry was
precipitated by a claim by Cayuga County that its tax maps were copyrighted. Based on the only
judicial decision of which I am aware, the tax maps are not subject to a copyright claim. In that case,
County of Suffolk v. Experian Information Solutions, Inc., it was initially determined that the County
could properly claim copyright protection for the tax maps that it prepared (U.S. District Court,
SDNY, 99 Civ.8735, May 15, 2000). On reargument, the Court reversed its prior holding and found
that such a claim could not be made (U.S. District Court, SDNY, NYLJ, August 1, 2000).

That latter decision was based largely on an advisory opinion that I prepared on March 14,
without knowledge of the Suffolk County litigation, concerning tax maps prepared by the State
Department of Transportation ("DOT") and made available under the Freedom of Information Law
that were copyrighted by the Department. The Court quoted from that opinion extensively as
follows:

"I note that every state has enacted a statute dealing
with public access to records of state and local
government. However, I know of no judicial decision
that has focused squarely on the ability of an agency
to limit, restrict or condition the use of records
acquired as of right pursuant to a statute that requires
the agency to disclose and copy its records. Further,
federal agencies cannot copyright their works, and
there is no precedent dealing with copyright by the
federal government. DOT contends that by making
copies of records available, it is in no way infringing
rights conferred by the [FOIL]. The restriction, which
is based on a copyright, merely deals with ‘a situation
involving a separate set of rights to the ownership and
possession of property which the State enjoys under a
separate set of federal laws.'

"The stance taken by DOT, in view of the Copyright Act (17 U.S.C.
§101), arguably is correct. However, due to the inherent purpose of
the [FOIL] and a review of the constitutional and statutory
underpinnings of copyright protection, I respectfully disagree. In
enacting the Freedom of Information Law, the State Legislature
declared that:

‘The more open a government is with its citizenry, the
greater the understanding and participation of public
in government.

‘As state and local government services increase and
public problems become more sophisticated and
complex and therefore harder to solve, and with the
resultant increase in revenues and expenditures, it is
incumbent upon the state and its localities to extend
public accountability wherever and whenever feasible.

‘[The above] in my view evidences an intent that the
public good is best served when records available
under that statute are disclosed as widely as possible
and without impediment...[I]n construing the [FOIL],
the courts have held that the status or interest of a
person seeking records are irrelevant; the only
question...is whether there is a basis for a denial of
access pursuant §87(2). ‘Interest' in my opinion
relates to the intended use of records. That a record
may not be used for a purpose relating to the
accountability of government is of no moment...and in
general, I do not believe that it is the government's
business to know or even to inquire as to the intended
use of records. Once the records have been found to
be available, the applicant should be able to do with
them as he or she sees fit...

‘[M]ost state statutes, like the federal FOIA, do not
allow for interest balancing or assessing the reason for
access. The mere fact that an individual or entity may
obtain income from an activity that serves a public
purpose does not negate the public nature of the
activity. When a commercial publisher disseminates
public information, it is serving a public purpose - the
very purpose that is central justification for FOIAs"
[Perritt, Should Local Governments Sell Local Spatial
Databases Through State Monopolies? 35 Jurimetrics
Journal 449, 45, Summer, 1995).

‘[T]he commentary quoted above is consistent with
and supports the notion that an access statute, like the
[FOIL], is intended to remove barriers to the
dissemination of government records and encourage
the widest possible distribution of those records.

‘In relating the foregoing to copyright, it is important,
in my opinion, to review the history and intent of
copyright protection. The basis of copyright is Article
I, §8 of the United States Constitution, which
indicates the framer's intent: ‘To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.' In construing the
‘copyright clause', the United States Supreme Court has stated that its purpose is as follows: ‘The
economic philosophy behind the clause empowering Congress to grant patents and copyrights is the
conviction that encouragement of individual effort by personal gain is the best way to advance public
welfare through the talents of authors and inventors in ‘Science and useful Arts'‘ [Mazer v. Stein,
347 U.S. 201, 219 (1954)].

‘At heart (sic) of copyright protection, therefore, is
‘personal gain', an economic incentive, and several
decisions support that principle.

‘Unlike authors and creators, DOT needs no similar
incentives. On the contrary, it is that agency's
statutory duty to prepare and preserve the kinds of
records that you are seeking...Such incentives are
unnecessary for public agencies, since these entities
have a statutory duty to collect, organize and
disseminate information...(Perritt, supra, 460)...

"The March 14 Advisory opinion then compares the FOIL to the
federal Freedom of Information Act, again concluding that the DOT
‘does not prepare the records for economic gain; it has no
‘commercial interest' in so doing; on the contrary, the records are
prepared because it is the agency's statutory obligation to do so. In
short, it is questionable in my view whether DOT can claim copyright
protection at all.' See id. at 8.

"The March 14 Advisory Opinion also included arguments that the
assertion of copyright protection in this context is contrary to public
policy and may violate the First Amendment. See id. at 9-10. The
Committee's March 14 opinion ultimately concluded that ‘the
assertion of copyright claims in the context of your inquiry is, in my
opinion, contrary to the intent of both the [FOIL] and the Copyright
Act.' See id. at 10."

The Court concluded that my opinion was "neither irrational nor unreasonable", and that
Suffolk County:

"...similar to the DOT, does not prepare the maps in question for
economic gain and has no commercial interest in preparing the maps.
Rather, Plaintiff prepares the tax maps because it is Plaintiff's
statutory obligation to prepare them. As a result, this ruling will not
create a disincentive for counties to create these tax maps...

"The Court concludes that, under the FOIL, First American may
freely copy and distribute Plaintiff's tax maps and that Plaintiff may
not prevent First American from disseminating the tax maps on the
basis of Plaintiff's copyrights in those maps."

In sum, based on the foregoing, it appears that records, like the tax maps, that a government
agency is required to produce, is not subject to copyright protection. I emphasize that the County
of Suffolk decision has been appealed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Alan P. Koslowski
Kevin M. Goldberg