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FOIL-AO-16494

March 13, 2007

Dear

Thank you for permitting me to address the recent gathering of New York State Archives employees. I enjoyed meeting you and your colleagues and hope that my presentation was helpful.

In response to the questions regarding copyright and the case of County of Suffolk v. Experian Information Solutions, Inc., I offer the following collected from our 2006 Annual Report to the Governor and the State Legislature, and from advisory opinions of the Committee on Open Government:

What happens when a request for a record is made under FOIL, the agency grants access to the record, and the recipient is then informed that the record is copyrighted and cannot be used without the government agency's consent or the payment of a royalty? Should state and local government have the authority to copyright records they produce?

In a village that developed a website and made various records available online, a copyright was claimed with respect to all such records, even those that had been available to any person, for any reason, for decades. In a school district that videotaped open meetings of its board of education, the recipient of a copy of the tape acquired following a request made under the FOIL was given the following warning:

“The provision of this tape-recording of the April 4, 2000 Board of Education meeting is provided pursuant to your FOIL request. Providing this tape to you is not to be construed as authorization by this district for you to air or republish the contents of this tape. Additionally, the provision of such tape is not authorization by any of the individuals depicted in such tape for you to air and/or republish said tape and/or its likeness.

“Please be advised that the contents of such tape are copyrighted and, with respect to the individuals depicted in any such tape, any re-airing or publication without their express permission may be construed as a violation of those individual’s civil rights pursuant to the New York State Civil Rights Law. Any airing or rebroadcasting of the contents of this tape without the express written permission of the Utica City School District is a violation of the United States Copywrite [sic] Laws and will be prosecuted to the fullest extent of the law.”

In our opinion, unless a person's name or likeness is used for a commercial purpose without his or her consent, the provision of the Civil Rights Law to which the memorandum referred would be inapplicable (Civil Rights Law, §51). Similarly, we believe that the rebroadcast of a videotape of an open meeting on public access television or for any use other than commercial would represent a "fair use" under the Copyright Act (17 USC §107). Nevertheless, the threat of prosecution could effectively have precluded the recipient of the videotape from using it for a completely valid purpose. Even though the possibility of a successful prosecution regarding the use of the videotape would, in the Committee's view, be nil, the threat itself has a chilling effect on the recipient, and the cost of defending in a lawsuit could be more than most could bear.

In March 2000, the Committee was asked to prepare an advisory opinion by a small upstate company that prepares maps. The company sought copies of maps from the State Department of Transportation, which made them available pursuant to a FOIL request, but informed the company that the maps were copyrighted and could not be used by the company for its commercial purposes without paying a royalty. As in the scenario described above, the company did not want to face the possibility of being sued in federal court based on a claim of copyright infringement. Nor did the company feel that it was fair to pay a royalty for copies of records for which the taxpayers, collectively, had already paid. Further, the imposition of an additional fee in the nature of the royalty would be financially damaging to the company.

The opinion focused on the intent of FOIL and copyright, and it was noted that every state has enacted a statute granting access to government records, and that no judicial decision could be found that dealt with the situation in which records prepared by a government agency were made available under an access law but were restricted in their use due to a claim of copyright. In short, FOIL's statement of intent indicates that the public good is best served when records made available under that statute are disclosed as widely as possible and without impediment. Moreover, it has been held judicially that records accessible under the FOIL should be made "equally available to any person, notwithstanding status or interest" [see Burke v. Yudelson, 368 NYS 2d 779, aff’d 51 AD2d 673, 378 NYS2d 165 (1976) and M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75 (1984)]. "Interest", according to the opinion, relates to the intended use of records. Citing a legal scholar, it was also suggested that:

"[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 FOIA's" [Perritt, Should Local Governments Sell Local Spatial Databases Through State Monopolies, 35 Jurimetrics Journal, 449, 45, Summer, 1995].

With respect to copyright, the opinion states as follows:

“The basis of copyright protection is Article 1, §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. Stain, 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.”

In the case of the request for the maps, they were prepared based on a statutory requirement imposed on the Department of Transportation. Due to its legal obligation to prepare maps, the Department's function could not be equated with works of authors and creators. Moreover, in view of that statutory obligation, it was advised that the Department had no "commercial interest" in preparing them, and the opinion concluded by suggesting that the assertion of copyright by the Department was contrary to the intent of both the FOIL and the Copyright Act.

The essential elements of the advisory opinion rendered by the Committee were cited in the decision rendered by the United District Court, Southern District of New York, in County of Suffolk v. Experian Information Solutions, Inc. and referenced at our March 8, 2007 gathering. The case involved tax maps that were prepared by law by Suffolk County that were used by Experian for its commercial purposes. The County brought suit based on a claim of copyright infringement, and the Court initially sustained the claim. However, based on the Committee's opinion, the Court reversed its earlier holding and determined that the County's claim should be dismissed (NYLJ, August 1, 2000). The decision was appealed and reversed, and the U.S. Court of Appeals found that since there is no legal prohibition, state and local governments may copyright records that they produce. Although the case was remanded to the District Court to determine whether the County engaged in the requisite creativity to validly claim copyright protection, a settlement was reached before a determination could be made.

In discussions with a representative of the company seeking the maps from the Department of Transportation, it was contended that paying royalties or some similar fee as a condition precedent to using records produced by the state served as an impediment to the growth of the company. From the Committee’s perspective, the issue involves a question of public policy relating to the interest of the state in economic growth and development. If, for example, a company has the capacity to acquire maps from a state agency under FOIL for the actual cost of reproduction, rather than paying royalties, it may be able to grow its business and, thereby, benefit the state. By adding one employee who is paid $50,000, that person would pay state income tax, as well as a variety of other taxes relating to purchases, real property, etc. At a rate of 7%, a person who resides in New York making $50,000 would pay $3,500 in state income tax. Additionally, when company profits increase, more revenue is generated. Those monies that inure to the state would likely be greater than the royalties paid to the Department of Transportation in conjunction with its copyright, and they would be paid year after year. In short, it would be more sensible and better public policy to charge a minimal fee based on the actual cost of reproduction to a company using the maps than to establish restrictions or charge a royalty or copyright fee.

The experience in other jurisdictions suggests that the more accessible government information is, the greater is the benefit to society. In response to a question posed to state governments by the State of Indiana regarding the use of “cost recovery models for making data available”, several responded by indicating that making the data readily accessible at low cost achieves a greater good than selling it. One respondent wrote that “charging for data has proven disastrous for California.” In considering the economic effects of charging, he wrote that:

“Since most of the value of a data set comes from analysis and value added by those other than the entity that produced the data, it’s economically efficient to have a large number of data users. It is interesting to note that in countries where the government has a free data policy there are many value added information companies. In countries where the government sells information the ability to value add is cut off at the root...

“Bottom line, if your State charges for information it risks...cutting off partnerships with your own companies and creating a number of strange incentives within your State government. We have been there and done that, its time to move on. Charging for data isn’t ‘creative’ - its playing Russian roulette with your State’s mapping systems.”

We recognize that government records, particularly those available in electronic media, have value and may be used commercially for profit. Further, it is a given that government agencies expend substantial amounts of money to acquire, develop and use information technology. Nevertheless, that money would be expended as part of running the government even if there was no FOIL, and even if nobody ever requested the records. In short, we do not believe that government should be charging more than the actual cost of reproducing records or discouraging the dissemination of public information. To do so, in our view, serves as a disincentive to the private sector at a time when New York is attempting to increase opportunities for economic growth.

The Committee also recognizes that there may be instances in which government agencies may validly assert copyright protection, i.e., those in which the historical elements of copyright are present: artistic creativity and academic or scientific research. We believe that original works involving scholarly or artistic creation may properly be copyrighted. In an effort to gauge the extent to which state agencies may have claimed copyright, we conducted a survey in 2005 that was answered by more than forty state agencies. Most do not copyright any of their works. Some referred to copyright for software developed in partnership with private entities. Others indicated that their web pages were copyrighted. Copyright was also claimed for a logo, for advertisements (by the MTA), and by the Department of Environmental Conservation for its magazine, The Conservationist. The Office of General Services, represented on the Committee by its Commissioner, referred to the publication of a book regarding works of art in the Empire State Plaza, and it was agreed that a publication of that nature historically has been and should continue to be subject to copyright protection. The proposed legislation would preserve that protection. The Department of Health, whose laboratories develop drugs and other medical products, patents those products. We note, too, that the State University has patented products that have been developed through scientific research, thereby giving government adequate protection for its creative work, as well as fair compensation.

We believe that copyright and similar protections, such as patents, are, in the circumstances described, justifiable and consistent with the typical assertion of copyright protection. We do not believe, however, that copyright should be claimed when an agency is obligated by law to prepare a record, as in the case of the maps prepared by the Department of Transportation or Suffolk County, or minutes of meetings prepared by a village board of trustees. Similarly, we do not believe that copyright should be asserted when the records involve the accountability of government and promote the public's understanding of government functions and activities, as in the case of a videotape of a meeting held by a board of education.

Earlier this year, legislation was proposed in both the Assembly and the Senate relative to this issue (A.5472/S.2385, copy attached). Based on language drafted by the Committee on Open Government, this bill would give agencies the discretionary authority to waive copyright protection regarding certain kinds of records. Perhaps more importantly, it would require agencies to waive copyright protections “except where the record reflects artistic creation, or scientific or academic research”and “whenever further reproduction and dissemination of the record sought shall substantially aid public oversight and accountability of government.” We are optimistic that this bill will be enacted.

I hope that this is helpful to you and your colleagues. Please let me know if you have any further questions.

Sincerely,

Camille S. Jobin-Davis
Assistant Director
CSJ:jm