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ARCHIVES Home

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ARCHIVES  July 2006, Week 4

ARCHIVES July 2006, Week 4

Subject:

Copyright status of public records [was Digitization of microforms]

From:

Peter Hirtle <[log in to unmask]>

Reply-To:

Peter Hirtle <[log in to unmask]>

Date:

Tue, 25 Jul 2006 18:22:27 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (60 lines)

In his response to my post, Chris Garmire suggested that the 
correspondent who indicated that "recorded public records or public 
records in the US have no copyrights" was correct, and that I was 
wrong to refute this.  I hate to argue with an IP lawyer (especially 
since I am not one!), but this is an important issue about which 
there seems to be some confusion, and so I would like to carry the 
discussion a bit further.  If I am wrong, I want to be corrected, 
especially since, as Chris suggested, copyright law is too 
complicated for any one mere mortal to comprehend.

Here is my understanding of the matter:

Both Chris and Charlotte Coats implied that I was thinking about 
preemption (the doctrine that Federal copyright law trumps state 
copyright law), but that is not the case.  Under federal copyright 
law, any original expression is copyrighted as soon as it is fixed in 
a tangible form.  It doesn't matter if the author is JD Salinger or 
the State of Iowa; the work receives federal (not state) copyright protection.

There are a few exceptions to this general rule.  Section 105 of the 
Copyright Act specifies that works of the US Federal government 
cannot be copyrighted (but says nothing about state or local 
copyrights).  Most court cases of which I am aware say that court 
decisions and briefs submitted to the court cannot be 
copyrighted.  Statutes, ordinances, and other laws also cannot be 
copyrighted - even if they incorporate work that initially was 
copyrighted (see Veeck v. South. Bldg. Code Cong. Intl.).

The distinction is best summarized in Stephen Fishman's excellent 
book "The Public Domain."  Fishman writes:

"The rule that the U.S. Government works are in the public domain 
does not apply to works by state and local government employees; 
those works may be protected by copyright.  For example, a state tax 
pamphlet or booklet on air pollution or water conservation published 
by a city or country may be protected."  Fishman adds that the trend 
seems to be for state governments increasingly to claim copyright 
protection as a way to earn extra income.

So I would maintain again that non-federal public records in the US 
are quite likely to be protected by copyright - unless they are 
purely factual, part of a court proceedings, or part of the law.

Chris and I are in agreement that the discussion on the list is 
purely informational, and not legal advice.

Peter Hirtle 

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