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April 29, 1993

 

 

Mr. Robert F. Reninger
250 Knollwood Road
White Plains, NY 10607

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 Mr. Reninger:

I have received your transmittal of April 16. In brief, your
request for certain building plans was denied by the Town Clerk of
the Town of Greenburgh because the building inspector informed her
that "building plans are not released without permission from the
owner."

You have sought an advisory opinion concerning the propriety
of the denial. In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency
records, and §86(4) of the Law defines the term "record"
expansively to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the foregoing, architects plans and similar or related
documents in my view clearly constitute "records" subject to rights
conferred by the Freedom of Information Law.

As a general matter, 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. From my
perspective, it is unlikely that any of the grounds for denial
could be asserted to withhold the records in question. Further,
§87(2) of the Freedom of Information Law states that accessible
records must be made available for inspection and copying, and
§89(3) indicates that an agency is obliged to make a copy of an
accessible record if the applicant pays the appropriate fee for
copying. In my opinion, 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 and surveys that are marked with the
seal of an architect or 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 §7307 of the
Education Law requires that an architect 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.

Third, additional considerations become relevant if the
records in question bear a copyright, and the question, in my view,
involves the effect of a copyright appearing on a document. In
order to offer an appropriate response, 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. Further, I am unaware of any
judicial decisions rendered in New York concerning the relationship
between the Copyright Act and the New York Freedom of Information
Law.

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.

To be copyrighted, 17 U.S.C. §401(b) states that a work must
bear a "notice", which:

"shall consist of the following three
elements:

(1) the symbol c (the letter C in a
circle), or the word 'Copyright,' or the
abbreviation 'Copr.'; and

(2) the year of the first publication of
the work; in the case of compilations or
derivative works incorporating previously
published material, the year date of the first
publication of the compilation or derivative
work is sufficient. The year date may be
omitted where a pictorial, graphic, or
sculptural work, with accompanying text
matter, if any, is reproduced in or on
greeting cards, postcards, stationery,
jewelry, dolls, toys, or any useful articles;
and

(3) the name of the owner of copyright in
the work, or an abbreviation by which the name
can be recognized, or a generally known
alternative designation of the owner."

If those elements do not appear on a work, I do not believe that it
would be copyrighted, and that it could be reproduced in response
to a request made under the Freedom of Information Law.

Assuming that a work is subject to copyright protection, such
a work that includes the notice described above is copyrighted. 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.).

In my opinion, 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 could properly 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, it appears that the work would be
available for copying under the Freedom of Information Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: Susan Tolchin, Clerk
Building Inspector