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Copyright status of works by subnational governments of the United States

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The copyright status of works produced by the governments of states, territories, and municipalities in the United States varies. Copyright law is federal in the United States. Federal law expressly denies U.S. copyright protection to two types of government works: works of the U.S. federal government itself, and all edicts of any government regardless of level or whether or not foreign.[1] Other than addressing these "edicts of government", U.S. federal law does not address copyrights of U.S. state and local government.[2]

The U.S. Copyright Office gives guidance that "Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable."[3] This leaves such works with the usual copyright protection unless applicable state or local law declares otherwise. Those laws, in turn, vary widely: some state and local governments expressly claim copyright over some or all of their copyrightable works, others waive copyright and declare that all government-produced documents are in the public domain, and yet others have not clearly defined their policies on the question.

States

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Arizona

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Works by the Arizona state government "are not in the public domain and are protected by copyright." Permission is generally required to use public records for commercial purposes. The Arizona State Library, Archives and Public Records, a division of the Arizona Secretary of State, tells readers that permission for commercial use must be obtained according to procedures described in ARS § 39-121.03.[4]

California

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In 2009, the California Court of Appeal for the Sixth District, which has statewide jurisdiction, ruled, in County of Santa Clara v. California First Amendment Coalition, that the California Public Records Act did not provide authority for copyrighting government records subject to disclosure under the act. The Court noted that other provisions of California law do expressly provide for the copyright of specific types of materials created by the state.[5] The court noted that:

The Legislature knows how to explicitly authorize public bodies to secure copyrights when it means to do so. For example, the Education Code includes a number of provisions authorizing copyrights, including this one: "Any county board of education may secure copyrights, in the name of the board, to all copyrightable works developed by the board, and royalties or revenue from such copyrights are to be for the benefit of the board securing such copyrights." (Ed. Code, § 1044; see also, e.g., id., §§ 32360, 35170, 72207, 81459.)

Colorado

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Under the Colorado Public Records Act documents and other works created by the state or local governments may be trademarked or copyrighted. Specifically:

[n]othing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record, and the state and its agencies, institutions, and political subdivisions are hereby specifically authorized to obtain and enforce such protection in accordance with the applicable federal law; except that this authorization shall not restrict public access to or fair use of copyrighted materials and shall not apply to writings which are merely lists or other compilations. (Colo. Rev. Stat. Ann. § 24-72-203.)[6]

Florida

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Main article: Copyright status of works by the government of Florida

Under Florida's Constitution and its statutes, the state and its agents are not permitted to claim copyright on its public records unless the legislature specifically permits it.[7][8][9][10][11] This includes a work made or received pursuant to law or ordinance or in connection with the transaction of official business by any state, regional, county, district, municipal, or other units of government and their associated committees and divisions created or established by the laws of the Government of Florida. Text, communications, and images produced by the government of Florida and any county, region, district, authority, agency, or municipal officer, department, division, board, committee, bureau, commission, or another separate unit of government created or established by law are consequently in the public domain according to court interpretation in Microdecisions, Inc. v. Skinner (2004).[10]

The bar on copyright extends to any "public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except concerning records exempted [specifically by statute or specifically made exempt or] confidential by the Constitution. [It] specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created under law or [the Florida] Constitution."[8]

There are various categories of works for which the legislature has specifically permitted copyright to be claimed, mostly for a few applications or development processes wherein the state derives income and while competing with private industries in the commercial realm, such as allowing the department of the lottery, the department of citrus, and some university research departments to secure copyrights for certain works that are expressly defined and narrowly limited.[12][13][14] The list of valid exemptions is culled regularly via a sunset policy to exclude items put on the list by error or via legislation passed within a recent session that does not conform to the laws. The state is attempting to streamline its exemptions and the current status of works claiming an exemption must be verified as conforming to the laws before being presumed to be copyright since copyright may be claimed in error for things that remain a public record nonetheless.

Indiana

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Indiana's public records law does not allow public agencies (not state agencies as defined in Indiana Code 4-13-1-1) to place restrictions on public records: "that requires the public to obtain a license or pay copyright royalties for obtaining the right to inspect and copy the records unless otherwise provided by applicable statute; if the contract, obligation, license, or copyright unreasonably impairs the right of the public to inspect and copy the agency's public records" [15]

Massachusetts

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The Secretary of the Commonwealth of Massachusetts informs the public that:

Those records created by Massachusetts government agencies and institutions held by the Massachusetts Archives are not copyrighted and are available for public use. Copyright for materials submitted to state agencies may be held by the person or organization that created the document. Patrons are responsible for clearing copyright on such materials.[16]

Minnesota

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There are conflicting official legal opinions on the correct interpretation of state law, and courts have yet to rule on how to interpret the law. A state commissioner's statement from December 1994 reads, in part, "unless specified by the legislature, the public's right of access to and use of public government data cannot be curtailed by a government entity's claim of intellectual property rights in those data". The reading of that as meaning "public domain", however, is contradicted by this statement from December 1995 which comes from the Attorney General, claims to be of higher authority, and explicitly references the prior statement and clarifies that it should be read as applying to access to the data, and not the copyright of the data, and offers alternative phrasing for the above-quoted portion: "The department may not assert copyright ownership to deny members of the public their right "to inspect and copy public government data at reasonable times and places" under Minn. Stat. § 13.03, subd. 3 (1994)." A key question is how to interpret this statute, which reads:[17]

Subd. 5.Copyright or patent of government data. A government entity may enforce copyright or acquire a patent for a computer software program or components of a program created by that government entity without statutory authority. If a government entity acquires a patent to a computer software program or component of a program, the data shall be treated as trade secret information under section 13.37.

For purposes of subd. 5, "Government entity" means a state agency, statewide system, or political subdivision.[18] Political subdivisions include counties, cities, towns, school districts, and certain nonprofit corporations,[19] each of which has authority under subd. 5 to enforce copyrights of works it has created, as does any state office, officer, department, division, bureau, board, commission, authority, district or agency of the state, the University of Minnesota, and the state itself.[20]

New Jersey

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New Jersey states that all documents originating from web sites of executive departments and non-independent agencies are "available to the public and anyone may view, copy or distribute State information found here without obligation to the State" unless the document specifically states otherwise.[21] Likewise, all records obtained from the state, county, or local government entities in New Jersey via the state's Open Public Records Act (OPRA), per a 2009 decision of the New Jersey Supreme Court, may be reproduced including for commercial purposes.[22]

According to the New Jersey Open Data Initiative Act (N.J.S.A 52:18A-234.5[23]), all information listed on state agencies' open data web portals, "shall be treated as license-free, subject to reuse, and not subject to copyright restrictions". This effectively makes data published under this act in the public domain.

New York

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Courts have ruled that in general, works of this state are subject to copyright restrictions.[24][25][26]

North Carolina

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North Carolina statute holds that "The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law."[27] The State Library of North Carolina considers state documents within its collection to be in the public domain according to U.S. copyright law.[28] Though state law in general describes state and local records as "property of the people", it describes some specific types of records that may have copyright held by the state. These include "archaeological resources which are collected, excavated or removed from State lands and associated records and data" and "original tapes, notes, discs or other records" created via "stenotype, shorthand, or stenomask equipment" as part of trial recording.[29]

Pennsylvania

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According to Pennsylvania statute, "The Department of General Services shall have the power, and its duty shall be… [t]o copyright, in the name of the Commonwealth, all publications of the Commonwealth, or of any department, board, or commission or officer thereof, including the State Reports, which under existing or future laws it shall be necessary to have copyrighted, and such other publications as the Secretary of Property and Supplies, with the approval of the Governor, shall deem it advisable to copyright."[30]

Rhode Island

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Rhode Island General Law § 38-2-3 states that "all records maintained or kept on file by any public body, whether or not those records are required by any law or by any rule or regulation, shall be public records and every person or entity shall have the right to inspect and/or copy those records at such reasonable time as may be determined by the custodian thereof."[31] However, exceptions are made in Rhode Island General Law § 38-2-2(4) for classified materials, trade secrets, and other sensitive information.[32]

South Carolina

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The Supreme Court of South Carolina held in Seago v. Horry County that a South Carolina county can hold copyrights on government works.[33]

Utah

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The current public records law, the Government Records Access and Management Act (GRAMA), is found at Utah Code Ann. § 63G-2-101. All records created or maintained by a state governmental entity are the property of the state (Utah Code Ann. § 63A-12-105). Government entities may control their copyright by ordinance or policy (Utah Code Ann. § 63G-2-201).[34]

Washington

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Works created by the State of Washington are copyrighted. Works published by the Secretary of State of Washington are voluntarily released into the public domain.[35]

Government outside states

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Some parts of the United States are not within U.S. states and instead derive their authority from federal acts of Congress. They have varying degrees of autonomy, which affects whether their governments' works are public domain works of the United States government, which the current Copyright Act of 1976 describes as "a work prepared by an officer or employee of the United States Government as part of that person's official duties".[36]

Compendium of U.S. Copyright Office Practices, Third Edition (2014) gives guidance about which jurisdictions are, or are not the United States government:

  • Works of the governments of the District of Columbia, the Commonwealth of Puerto Rico, and the "organized territories" (incorporated or unincorporated) are considered U.S. Government works.[37]: §313.6(C)(1) 
  • For the unorganized territories, "Domicile or first publication in any of the territorial areas under the jurisdiction of the U.S. government — other than the several states, the District of Columbia, and the Commonwealth of Puerto Rico, and the organized territories — does not confer eligibility for [copyright] registration. Such areas include the unorganized territories, the trust territories, and other possessions of the United States." Registration may be permitted, however, depending on the nationality of the individual.[38] However, some older works in the unorganized territories may be copyrightable. Copyright renewal was required for works published or registered on or before December 31, 1963, but not for works published or registered after that date.[37]: §313.6(D)  "For renewal registration purposes, the United States comprises the States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, Panama Canal Zone, America Samoa, and other trust territories. For the manufacturing requirements, unorganized areas under the jurisdiction of the United States (such as Guam, Panama Canal Zone, Virgin Islands, and American Samoa) are not considered a part of the United States."[39]

See also

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References

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  1. ^ Compendium II: Copyright Office Practices, Chapter 200, § 206.01. As of 1998 supplement. "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments."
  2. ^ CENDI/2008-1 CENDI Frequently Asked Questions about Copyright: Issues Affecting the U.S. Government Archived 2009-03-04 at the Wayback Machine 3.1.3 "Does 17 USC §10560 apply to works of State and Local Governments?" "No, it applies only to federal government works. State and local governments may and often do claim copyright in their publications. It is their prerogative to set policies that may allow, require, restrict or prohibit claim of copyright on some or all works produced by their government units."
  3. ^ Compendium II: Copyright Office Practices, Chapter 200, § 206.03. As of 1998 supplement.
  4. ^ County of Santa Clara v. California First Amendment Coalition, H031658 (Cal. App. 4th 2009). (archived copy at archive.org)
  5. ^ "Colorado". Copyright at Harvard Library. Harvard University. Archived from the original on 19 May 2023. Retrieved 22 March 2024.
  6. ^ "Fla. Stat. 119.011(12) Public Records".
  7. ^ a b "Statutes & Constitution :Constitution : Online Sunshine". www.leg.state.fl.us.
  8. ^ "Statutes & Constitution :View Statutes :->2005->Ch0119->Section 011 : Online Sunshine". www.leg.state.fl.us.
  9. ^ a b Microdecisions, Inc. v. Skinner, 889 S.2d 871, at 9 (2004).
  10. ^ "§ 286.021 Dept of State to hold copyrights". Florida Statutes. 18 Jun 2018. Archived from the original on 18 June 2018.
  11. ^ Florida Statutes §24.105(10)
  12. ^ Florida Statutes §601.101
  13. ^ Florida Statutes §1004.23
  14. ^ "Indiana Code 2014 - Indiana General Assembly, 2023 Session".
  15. ^ "Archives: Research Services". Secretary of the Commonwealth of Massachusetts. Archived from the original on 2022-05-24. Retrieved 2022-12-18.
  16. ^ "Sec. 13.03 MN Statutes". www.revisor.mn.gov.
  17. ^ MN Legislature. "Minnesota Statute 13.02, subd. 7a (2022)". Minnesota Statutes 2022. Office of the Revisor of Statutes. Retrieved 8 March 2023.
  18. ^ MN Legislature. "Minnesota Statute 13.02, subd. 11 (2022)". Minnesota Statutes 2022. Office of the Revisor of Statutes. Retrieved 8 March 2023.
  19. ^ MN Legislature. "Minnesota Statute 13.02, subd. 17 (2022)". Minnesota Statutes 2022. Office of the Revisor of Statutes. Retrieved 8 March 2023.
  20. ^ State of New Jersey. "Conditions of Use Notice" (17 July 2010). Retrieved 2 July 2013.
  21. ^ Burnett v. County of Bergen, 402 N.J.. Super 319 (2008).
  22. ^ New Jersey General Assembly. "N.J.S.A. 52:18A-234.5". Statutes of New Jersey. New Jersey.
  23. ^ "Court rules copyright in maps does not offend open records law". Reporters Committee for Freedom of the Press. 2 August 2001. Retrieved 13 October 2015.
  24. ^ Smalley, Laura W. (31 October 2012). "State and Local Government Works May be Copyrighted". Retrieved 13 October 2015.
  25. ^ County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179, 401 (2d. Cir. 2001) ("Therefore, we conclude that the Legislature, by enacting FOIL, did not abrogate Suffolk County's copyright.").
  26. ^ "Chapter 132". www.ncleg.gov.
  27. ^ State Document Public Domain Notice by the State Library of North Carolina
  28. ^ "North Carolina". Copyright at Harvard Library.
  29. ^ "Pennsylvania Statutes Title 71 P.S. State Government § 636". Findlaw.
  30. ^ webserver.rilegislature.gov https://webserver.rilegislature.gov//Statutes/TITLE38/38-2/38-2-3.htm. Retrieved 2024-04-07. {{cite web}}: Missing or empty |title= (help)
  31. ^ webserver.rilegislature.gov https://webserver.rilegislature.gov//Statutes/TITLE38/38-2/38-2-2.htm. Retrieved 2024-04-07. {{cite web}}: Missing or empty |title= (help)
  32. ^ Seago v. Horry County, 663 SE 2d 38 (S.C. 2008-06-16).
  33. ^ "Utah". harvard.edu. Retrieved May 11, 2020.
  34. ^ "Washington". harvard.edu. Retrieved January 18, 2021.
  35. ^ 17 U.S.C. § 101
  36. ^ a b Compendium of U.S. Copyright Office Practices, Third Edition (2014), Chapter 300. (§s cited in article body above)
  37. ^ Compendium of U.S. Copyright Office Practices, Third Edition (2014), Chapter 2000, §2005.3.
  38. ^ Compendium of U.S. Copyright Office Practices, Third Edition (2014), Chapter 2100, Part VIII Glossary of Terms, p. 85.
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