I wish I had the original post, but I will have to use what Peter used
in his post, namely, "Recorded public records or public records in the
US have no copyrights!!
As far as a constitutional analysis, as a first impression, I would
hardly come to such a quick conclusion as to say that Grantor/Grantee
indexes fall under state copyright protection. Pre-emption is clearly
an issue that you would have to deal with as well. Even if you decide
that 105 does not pre-empt state law, it's still an issue that must be
discussed.
"I normally avoid the discussion of copyright law as to me it is a
mystery wrapped in an enigma.
Nevertheless, I am compelled to note that the Texas State Legislature
maintains that public information may be copyrighted. Specifically
Section 2054.052(e) of the Government Code provides that the Department
of Information Resources may:
(e) The department may:
(1) acquire, apply for, register, secure, hold,
protect, and renew under the laws of the State of Texas, the United
States, any state in the United States, or any nation:
(B) a copyright for an original work of
authorship fixed in any tangible medium of expression, now known or
later developed, from which it can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or
device; "
From what I could tell from my reading of California State Copyright
Law, the California State Legislature takes a radically different
approach. California Copyright Law extends protection to some works not
fixed in any tangible medium of expression. The view of the legislature
is that any state protection mirroring the federal statute, like Texas,
would be preempted.
The key question turns on the applicability of 105 to the states. A
good example would be the 14th Amendment.
The constitution is silent about the applicability of the 1st amendment
to the states. Yet, the courts have held it is incorporated through the
14th amendment and any contrary provision in state statutes that limits
such protections is void. The states, however, are allowed to grant
additional protections if they see fit. This is basically what the
state of California has done with state copyright law.
"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."
Ultimately, the problem is that who knows who is right or wrong. That
is never the question in any legal problem. It's only what you can
prove. I thought I was right a lot of the times in law school,
unfortunately my law professors saw it different a good portion of the
time :). The state of Texas clearly thinks they can copyright their
state statutes, court opinions, etc. California takes a different
approach. Yes, states can issue copyright protection for public
documents . That doesn't mean that those statutes comport with the
Supremacy clause.
I can tell you one thing, however. If states start affording state
copyright protection to court opinions and statutes, then Westlaw will
quickly challenge any and every such state statute.
-----Original Message-----
From: Peter Hirtle [mailto:[log in to unmask]]
Sent: Tuesday, July 25, 2006 4:22 PM
To: [log in to unmask]
Subject: Copyright status of public records [was Digitization of
microforms]
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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