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July 24, 2001

FOIL-AO-12830

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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

Dear

I have received your letter in which you questioned the effect of a copyright notice appearing
on site plans, maps, architectural drawings and similar records filed with or maintained by agencies
of government. You referred, for example, to a statement indicating that "unauthorized alteration
and/or duplication of this drawing is a violation of section 7209, provision w of the New York State
Education Law."

In this regard, I offer the following comments.

First, the Freedom of Information Law is based upon a presumption of access. Stated
differently, all records of an agency are available, except to the extent that records or portions thereof
fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. As a
general matter, when records are accessible under the Freedom of Information Law, it has been held
that they should be made equally available to any person, regardless of one's status, interest or the
intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS
2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on government decision-making, its ambit is not
confined to records actually used in the decision-making process.
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the
use of the records and the motivation of the applicant are in my opinion irrelevant. Whether the
owner of property consents to permit access to a building plan is irrelevant; if a record is available
under the Freedom of Information Law, the subject of the record does not have the ability to control
disclosure.

Second, access to plans, drawings and surveys that are marked with the seal of an architect,
a land surveyor or an engineer has been the subject of several questions and substantial research.
Professional engineers and architects are licensed by the Board of Regents (see respectively, Articles
145 and 147 of the Education Law,). While §§ 7209 and 7307 of the Education Law require that the
licensees identified above have a seal, and that state and local officials charged with the enforcement
of provisions relating to the construction or alteration of buildings cannot accept plans or
specifications that do not bear such a seal, I am unaware of any statute that would prohibit the
inspection of such records under the Freedom of Information Law. Some have contended that an
architect's seal, for example, represents the equivalent of a copyright. Having discussed the matter
with numerous officials, including officials of the appropriate licensing boards, the seal does not
serve as a copyright, nor does it restrict the right to inspect and copy; it merely indicates that a person
is qualified as a licensee.

Third, additional considerations become relevant in relation to copyright. In an effort to
obtain guidance, I have discussed the matter with a representative of the U.S. Copyright Office and
the Office of Information and Privacy at the U.S. Department of Justice, which advises federal
agencies regarding the federal Freedom of Information Act (5 U.S.C. §552), the federal counterpart
of the New York Freedom of Information Law.

It is noted that the Federal Copyright Act, 17 U.S.C. §101 et seq., appears to have supplanted
the early case law concerning the Act prior to its amendment in 1976. Useful to the inquiry is a
federal court decision in which the history of copyright protection was discussed, and in which
reference was made to notes of House Committee on the Judiciary (Report No. 94-1476) referring
to the scope and intent of the revised Act. Specifically, it was stated by the court that:

"The power to provide copyright protection is delegated to the
Congress by the United States Constitution. Article 1, section 8,
clause 8, of the Constitution grants to Congress the power '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.'

Copyright did not exist at common law but was created by statute
enacted pursuant to this Constitutional authority. See Mazer v. Stein,
347 U.S. 201, 74 S.Ct. 460, 98 L.ed. 630 (1954); see also MCA, Inc.,
v. Wilson, 425 F.Supp. 443, 455 (S.D.N.Y. 1976); Mura v. Columbia
Broadcasting System, Inc., 245 F.Supp. 587, 589 (S.D.N.Y. 1965),
and cases cited therein.

Prior to January 1, 1978, the effective date of the revised Copyright
Act of 1976, there existed a dual system of copyright protection
which had been in effect since the first federal copyright statute in
1790. Under this dual system, unpublished works enjoyed perpetual
copyright protection under state common law, while published works
were copyrightable under the prevailing federal statute. The new Act
was intended to accomplish 'a fundamental and significant change in
the present law by adopting a single system of Federal statutory
copyright... (to replace the) anachronistic, uncertain, impractical, and
highly complicated dual system.' H.R. Rep. No. 94-1476; 94th Cong.
2d Sess. 129-130, reprinted in [1976] 5 U.S. Code Cong. & Ad. News
5745. This goal was effectuated through the bed-rock provision of 17
U.S.C. subsection 301, which brought unpublished works within the
scope of federal copyright law and preempted state statutory and
common law rights equivalent to copyright. Id. at 5745-47. Thus,
under subsection 301(a), Congress provided that Title 17 of the
United States Code, the Federal Copyright Act, preempts all state and
common law rights pertaining to all causes of action which arise
subsequent to the effective date of the 1976 Act, i.e., January 1, 1978:

(a) On and after January 1, 1978, all legal or equitable rights that
are equivalent to any of the exclusive rights within the general scope
of copyright as specified in Section 106 in works of authorship that
are fixed in a tangible medium of expression and come within the
subject matter of copyright as specified in sections 102 and 103,
whether published or unpublished, are governed exclusively by this
title. Thereafter, no person is entitled to any such right or equivalent
right in any such work under the common law or statutes of any
State." [Meltzer v. Zoller, 520 F.Supp. 847, 853 (1981)]

Based upon the foregoing, "common law" copyright appears to be a concept that has been rejected
and replaced with the current statutory scheme embodied in the revised Federal Copyright Act.

In view of the language of the Copyright Act, case law and discussions with a representative
of the Copyright Office, it is clear in my opinion that architectural plans and similar documents may
be copyrighted.

Assuming that a work is subject to copyright protection, it is noted that such a work may "at
any time during the subsistence of copyright" [17 U.S.C. §408(a)] be registered with the Copyright
Office. No action for copyright infringement can be initiated until a copyright claim has been
registered. As I understand the Act, if a work bears a copyright and is reproduced without the
consent of the copyright holder, the holder may nonetheless register the work and later bring an
action for copyright infringement.

In terms of the ability of a citizen to use an access law to assert the right to reproduce
copyrighted material, the issue has been considered by the U.S. Department of Justice with respect
to copyrighted materials, and its analysis as it pertains to the federal Freedom of Information Act is,
in my view, pertinent to the issue as it arises under the state Freedom of Information Law.

The initial aspect of its review involved whether the exception to rights of access analogous
to §87(2)(a) of the Freedom of Information Law requires that copyrighted materials be withheld.
The cited provision states that an agency may withhold records that are "specifically exempted from
disclosure by state or federal statute." Virtually the same language constitutes a basis for
withholding in the federal Act [5 U.S.C. 552(b)(3)]. In the fall 1983 edition of FOIA Update, a
publication of the Office of Information and Privacy at the U.S. Department of Justice, it was stated
that:

"On its face, the Copyright Act simply cannot be considered a
'nondisclosure' statute, especially in light of its provision permitting
full public inspection of registered copyrighted documents at the
Copyright Office [see 17 U.S.C. 3705(b)]."

Since copyrighted materials are available for inspection, I agree with the conclusion that records
bearing a copyright could not be characterized as being "specifically exempted from
disclosure...by...statute."

The next step of the analysis involves the Justice Department's consideration of the federal
Act's exception (exemption 4) analogous to §87(2)(d) of the Freedom of Information Law in
conjunction with 17 U.S.C. §107, which codifies the doctrine of "fair use". Section 87(2)(d) permits
an agency to withhold records that "are trade secrets or are submitted to an agency by a commercial
enterprise or derived from information obtained from a commercial enterprise and which if disclosed
would cause substantial injury to the competitive position of the subject enterprise." Under §107,
copyrighted work may be reproduced "for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research" without
infringement of the copyright. Further, the provision describes the factors to be considered in
determining whether a work may be reproduced for a fair use, including "the effect of the use upon
the potential market for or value of the copyrighted work" [17 U.S.C. §107(4)].

According to the Department of Justice, the most common basis for the assertion of the
federal Act's "trade secret" exception involves "a showing of competitive harm," and in the context
of a request for a copyrighted work, the exception may be invoked "whenever it is determined that
the copyright holder's market for his work would be adversely affected by FOIA disclosure" (FOIA
Update, supra). As such, it was concluded that the trade secret exception:

"stands as a viable means of protecting commercially valuable
copyrighted works where FOIA disclosure would have a substantial
adverse effect on the copyright holder's potential market. Such use
of Exemption 4 is fully consonant with its broad purpose of
protecting the commercial interests of those who submit information
to government... Moreover, as has been suggested, where FOIA
disclosure would have an adverse impact on 'the potential market for
or value of [a] copyrighted work,' 17 U.S.C. §107(4), Exemption 4
and the Copyright Act actually embody virtually congruent
protection, because such an adverse economic effect will almost
always preclude a 'fair use' copyright defense...Thus, Exemption 4
should protect such materials in the same instances in which
copyright infringement would be found" (id.).

Conversely, it was suggested that when disclosure of a copyrighted work would not have a
substantial adverse effect on the potential market of the copyright holder, the trade secret exemption
could not appropriately be asserted. Further, "[g]iven that the FOIA is designed to serve the public
interest in access to information maintained by government," it was contended that "disclosure of
nonexempt copyrighted documents under the Freedom of Information act should be considered a 'fair
use'" (id.).

Due to the similarities between the federal Freedom of Information Act and the New York
Freedom of Information Law, the analysis by the Justice Department might be applied when making
determinations regarding the reproduction of copyrighted materials maintained by entities of
government in New York. In sum, if reproduction of copyrighted architectural plans and similar
records would "cause substantial injury to the competitive position of the subject enterprise," i.e.,
the holder of the copyright, in conjunction with §87(2)(d) of the Freedom of Information Law, it
would appear that an agency could preclude reproduction of the work. On the other hand, if
reproduction of the work would not result in substantial injury to the competitive position of the
copyright holder, that exception would not apply.

The remaining provision of potential significance, §87(2)(f) of the Freedom of Information
Law, permits an agency to withhold records insofar as disclosure could "endanger the life or safety
of any person." It has been advised that the cited provision might properly be invoked insofar as the
kinds of records at issue include information concerning alarms, security systems and the like.

I note that there are no judicial decisions of which I am aware that have dealt directly with
the issue that you raised. An approach different from that suggested in the preceding commentary
might serve as the basis for considering access to copyrighted materials. Assuming that an agency
cannot rely upon the grounds for denial discussed above, it may be required to permit an applicant
to inspect and copy a copyrighted work. In that situation, the government agency that discloses the
record should bear no liability or responsibility relating to the use of the work. Rather, if the holder
of the copyright believes that the recipient of a copy of the work has in some manner violated the
Copyright Act, that person or entity may initiate proceedings against the recipient for copyright
infringement.

I hope that I have been of assistance.

RJF:tt