Op. Atty. Gen. 852

DAT_A I_)RAC.'I`lCES: COPYRIGHT: STATE AGENCY DA'I`A: State agency data

constituting original works of authorship are protected by federal copyright law. Certain

restrictions may be placed upon use of public data. Tit. 17 U.S.C. Minn. Stat. §§ 13.03,

13.37,15.95,1613.483,16B.51,16B.53.

852

(Cr. Ref. 315a)

k December 4, 1995

Rodney Sando, Commissioner

Department ofNatural Resources

DNR Bldg., 6th Floor

500 Lafayette Road

St. Paul, Minnesota 55155

Dear Commissioner Sando:

_ In your letter to Attorney General Hubert H. Humphrey HI, you request an opinion of the

attorney general pursuant to Minn. Stat. § 8.06 (1994) which, under 13.072, subd. l(c) (1994)

takes`precedence over Department of Administration Data Practices Opinion No. 94-057, issued

by the acting commissioner of administration on December 28, 1994. You present substantially

the following:

FACTS

In 1994, Stephen Boe requested access to and copies of maps and other data developed by

department of natural resources (DNR) staff concerning Cass Lake muskellunge'."'fhe DNR told

him that he was free to view and copy the requested data, but that his right to use the data was

subject to the department’s copyright under the Federal Copyright Act (FCA), 17 U.S.C.

§ lO?.(a) (1988), and that all photocopies and notes On the data would carry the department’s

copyright notice. The DNR further advised Mr. Boe that he could not publish or otherwise use

the data for purposes other than personal ones unless he obtained a license from the department

Mr. Boe objected and, pursuant to Minn. Stat. § 13.072, subd. l(a) (1994), requested an

opinion ofthe commissioner ofadministration. Acting commissioner of administration Robert

A. Schroeder opined that, under the Minnesota Government Data Practices Act (MGDPA),

Minn. Stat. ch. 13 (1994), state agencies must provide access to government data classified as

“public,” and must also permit unrestricted use ofthat data, even for commercial purposes,

absent specific statutory authority to the contrary. On that basis, the acting commissioner ruled

that the DNR’s position was impermissible

You then asked us substantially the following:

Rodney Sando, Commissioner

Page 2

December 4, 1995

QUESTION

Under current law, may a state agency lawfully require that a person seeking to distribute

or sell copies of government data enter into a license or authorization agreement governing the

data’s subsequent use, if that data is “public” under the Minnesota Govemment Data Practices

Act?

OPINION

We answer your question in the aft`irrnative, subject to the following restrictions:

1. The data in question must come within the scope of “original works of

authorship” of the State protected by the Federal Copyright Act (FCA), Title 17, U.S. Code.

2-.' The agency may not impose restrictions on use beyond its rights under the FCA.

For example, the agency may use _a license or authorization agreement to restrict or condition an

individual’s authority to make additional copies, to prepare derivative works based upon the

copyrighted work, or to distribute copies to the public by sale or other transfer of ownership, or

by rental, lease, or lending, 17 U.S.C. § 106 (1988), but may not restrict or condition “fair use”

of the data for purposes such as criticism, comment, news reporting, teaching, scholarship, or

research 17 U.s.C. § 107 (1988).. ~-

3. 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). To the extent the data has commercial value, was

developed with a significant expenditure of public funds, and meets the other criteria in the

second paragraph ofMinn. Stat. § 13.03, subd. 3 (1994), the department may not use copyright

ownership to recover fees in addition to the costs of making, certifying, and compiling copies in

Rodney Sando, Commissioner

Page 3

December 4, 1995

an amount more than can be justified in relation to the actual development costs ofthe data,

unless otherwise specifically authorized by statute.

Oiir basic conclusion is that, although the Minnesota Govemment Data Practices Act

(MGDPA), Minn. Stat. ch. 13 (1994), generally does riot permit state agencies to withhold M;s_s

to “public” government data, it does not follow that the MGDPA prohibits state agencies from

placing reasonable restrictions on the _us_e of their “original works of authorship,” consistent with

the rights of a copyright owner under the Federal Copyright Act (FCA).

Eederal chvright law

The Federal Copyright Act (FCA) provides that:

~ _Copyright protection subsists, iri accordance with this title, in original works of

authorship fixed in any tangible medium of expression, now known or later

developed, from which they can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or device.

17 U.S.C. § lOZ(a) (198-8). The purpose ofthe Act is set forth in the U.S. Constitution, which

gives Congress the power “[t]o regulate the progress of science and useful arts, by securing for

limited times to authors and inventors the exclusive right to their respective \vriiings and

discoveries.” U.S. Const., art. I, § 8.

The coverage of the copyright law is broad. Not only does it protect creative works like

novels, paintings, and pictures, but it also can cover what are sometimes called “fact works”--

works that have value because they communicate accurate factual information in useful ways.

That includes “pictorial, grapliic, and sculptural \vorks” such as “maps, globes, chaits, diagrams,

models, and technical drawings,” as well as “literary works,” defined as “works expressed in

words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature ofthe

Rodney Sando, Conimissioner

Page 4

December 4, 1995

material objects, such as books, periodicals, manuscripts, phonorecords, tilm, tapes, disks, or

cards, in which they are embodied.” 17 U.S.C. § 101 (1988). Copyright protection also extends

to “compilations,” 17 U.S.C. § 103 (1988), which section 101 in turn defines as works “forrned

by the collection and assembling of preexisting materials or of data that are selected, coordinated,

or arranged in such a way that the resulting work as a whole constitutes an original work of

authorship.” 17 U.S.C. § 101 (1988). lt is, of course, not the underlying facts themselves that

are copyrightable, but rather the particular selection or arrangement chosen. feist Eub|ication§,

lnc. v. Bural Telephone §ervice §§o., 499 U.S. 340, 111 S. Ct. 1282 (1991);§;<;_;\1§& Kidwell,

Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025.

~* Contrary to a common misperception, no application is required to secure copyright

protection Copyright protection is in place immediately and automatically when the work is

created. No registration or other action in the Copyright Office of the Library of Congress is

required,l nor is there any requirement that the work be published before it is copyrighted At

least since the 1978 amendments to the Federal Copyright Act, copyright “subs_ists” from the

time that a work is first embodied in a tangible medium. 17 U.S.C. § 102 (1988).' b

Copyright vests initially in the author or authors of the work, 17 U.S.C. § 201(a) (1988),

except that, in case of “works for hire,” the employer or other person for whom the work was

prepared is considered to be the author. 17 U.S.C. § 20l(b) (1988). Subject to a number of

l 'l`he familiar copyright notice, e.g., “Copyright 1995 lane Doe,” is optional, as is copyright

registration with the Copyright Office. Under the Beme Convention implementation Act of

1988, Pub. L. 100-568, 102 Stat. 2853, failure to place a copyright notice can never cause loss of

copyright Copyright notices and registrations do help prevent defendants from claiming

“innocent infringement” or making other arguments to avoid or reduce the size of infringement

damages a\vards.

Rodney Sando, Comniissioncr

Page 5

Decernber 4 , 1995

exceptions, 17 U.S.C. §§ 107-120 (1988), the owner ofa copyright has the exclusive right to do

or to authorize any ofthe following:

(ll) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public

by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, drarnatic, and choreographic works,

pantomimes, and motion pictures and other audiovisual works, to perform the

copyrighted work publicly; and

(5) in the case of literary, musical, dramatic,»and choreographic works,

pantomimes, and pictorial, graphic, or sculptural works, including the individual

images of a motion picture or other audiovisual work, to display the copyrighted

»_work publicly.

17 U.S.C. § 106 (1988).

The State of Minnesota obviously generates significant amounts of “data” under state law

that would come within the scope of “original works of authorship” under federal law. A

threshold question, then, is whether, under the FCA, a State or its agencies can be_ a copyright

owner with the exclusive rights set forth in section 106.

We conclude that they can. Nothing in the FCA restricts the scope of the Act to private

parties. The ml government is excluded, 17 U.S.C. § 105 (1988), but, as at least one court

has reasoned, “[t]he statute relating to copyrights is not restricted to private parties and there is

no reason to believe that such a restriction should be upheld. In fact, the opposite inference is

required when only one specific governmental entity, the United States ofAmerica, is excluded

from the protection ofthe Act.” National§onference of Bar Exznnhiers v, Mtdtistate Legal

§tudies, lnc., 495 1". Supp. 34, 35 (`N.D. lll. 1980), aff d, 692 F.2d 478 (7tli Cir. 1982), c_eLL

Rodney Sando, Commissioner

Page 6

December 4, 1995

denied, 464 U.S. 814, 104 S. Ct. 69 (1983). The Copyright Office at the Library of Congress

also recognizes that works of state and local government officials can be copyrighted See also

Copyriglit Office Practices Compendium 11 § 206.03, cited in John W. Hazard, Jr., Copyright

Law in Business and Practice , para. 4_3[3] at 4-22 (1989):

Coyrightable government works Works (other than edicts of government)2

prepared by officers or employees of any government (except the U.S.

Govemment) including State, local, or foreign governments, are subject to

registration if they are otherwise copyrightable.

Hazard at 4-22 (“It is generally recognized that the works of state and local governments can be

the subject of a copyright.”) Likewise, the Copyright Remedy Clarification Act, adopted in

1990, expressly includes “any governmental or nongovernmental entity” within the scope of

those with standing to sue in federal court for copyright infringement, clearly suggesting

Congress’s understanding that state and local governments can be copyright owners. 17 U.S.C.

§ 511 (1988). See also Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021,

1024 (“[S]tate and local governments may generally hold copyright in works they author, while

the federal government may no_t.”) We likewise conclude that, under the federaf‘iaw, the State of

Minnesota, its agencies, and its political subdivisions can enjoy the intellectual property rights of

the Federal Copyright Act.

2 Most states claim copyright in their statutes, session laws, and other legislative materials. There

is case law support, however, for the proposition that the texts of statutes, rules and judicial

opinions are in the public domain. E, gin Building thicials &Qoniiiinistrators v. Code

Technology, Inc., 628 F.2d 730 (1st Cir. 1980); see generally 1 M. Ninimer and D. Nimmer,

Copyright, § 5.06[C] (1993); Patterson and Joyce, MQnQlei;ing the I£aw: the §cope of

Copyright l§erectiQn for l¢aw Repoits and Statutg[y §§Qnipi]ations, 36 UCLA L. Rev. 719

(1989).

Rodney Sando, Commissioner

Page7

December 4, 1995

State datajr)ractices and records management laws

Governrnent agencies are, of course, creatures of statute and possess only those powers

given to them by the legislature. As the Minnesota Suprerne Court has made clear:

'1`he legislature states what the agency is to do and how it is to do it. \Vhile

express statutory authority may not be given a cramped reading, any enlargement

of express powers by implication must be fairly drawn and fairly evident from the

agency objectives and powers expressly given by the legislature

Perles l;latural gas §§Q_ v_ Minnesota Public litilities_ Commission, 369 N.W.2d 530 (Minn.

1985). Our review of the statutes leads us to the conclusion that the power to exercise and

enforce intellectual property rights can be “fairly drawn" and is “fairly evident from the powers

expressly given by the legislature.”

L

`For example, Minn. Stat. § 15.95, subd. 5(8) (1994) delegates to the government

information access council the responsibility to evaluate “how the state and other governmental

units can protect their intellectual property rights, while making government data available to the

public as required in chapter 13.” At bare minimum, that provision acknowledges the existence

of those rights, and is inconsistent with the view that the legislature has already`r`el'inquished

them outright Likewise, Minn. Stat. § 16B.483 (1994), which provides that “[b]efore executing

a contract or license agreement involving intellectual property developed or acquired by the state,

a state agency shall seek review and comment from the attomey general on the terms and

conditions of the contract or agreement,” implies that the legislature understands that the state

owns intellectual property and that agencies have the authority to enter into contracts or license

agreements involving that property.

i....~....,i._.....~._.......~ ..~`, . -

Rodney Sando, Commissioner

Page 8

December 4 , 1 995

Other statutes expressly delegate to state agencies the authority and responsibility to

preserve, transfer, sell and otherwise manage government records. Those statutes are all

consisteni' with the idea that state agencies are to act as the responsible owners of certain

government data, Minn. Stat. § 138.17, subd. 7 (1994) provides that “[i]t shall be the duty of the

head of each state agency and the governing body of each county, municipality, and other

' subdivision of government to cooperate with the commissioner [of administration] . . . to

establish and maintain an active, continuing program for the economical and efficient

management of the records of each agency, county, municipality or other subdivision of

government.” The record retention statute, Minn. Stat. § 15.17, subd. 2 (1994) likewise creates a

duty of “preservation and care” of government records in the chief administrative officer of each

agency.

Minn. Stat. § 138.17, subd. 10(3) (1994) gives the historical society, which is the

ultimate depository for most state agency data, the authority to deny public access to

“proprietary inforrnation, including computer programs and software and other types of

information manufactured or marketed by persons under exclusive legal ri ght, owned by the

agency or entrusted to it.” Minn. Stat. § 16B.51, subd. 3 (1994) provides that _the commissioner

of administration may sell, notjust “ceitain data” or computer software, but rather:

may sell official reports, documents, data, and publications of all kinds, may

delegate their sale to state agencies, and may establish facilities for their sale

within the department of administration and elsewhere within the state service.

l_.ikewise7 Minn. Stat. § 16B.52, siibds. l and2 (199-'1) seems to support state agencies’

assertion ofownership of intellectual property, by providing that any “report or publication paid

for from public funds must carry the imprimatur oftlie agency under whose authority it is

Rodney Sando, Coniniissioner

Page 9

December 4, 1995

issued.” Minn. Stat. § 16B.51, subd. 1 (1994) further provides that the commissioner of

administration “shall supervise and control the making and distribution of all reports and other

publications of all kinds issued by the state when not otherwise prescribed by law.”

At minimum, those provisions delegate general management authority over government

data and records to agencies, in conjunction with the commissioner of administration, and it is

not unreasonable to construe that general authority to include the authority to take steps to

preserve federal copyright ownership rights.

S_ection 201 (d) of the Copyright Act does, however, provide that “[t]he ownership of a

copyright may be transferred in whole or in part . . . by operation of law,” and so, the question is

whether the Minnesota Govemment Data Practices Act (MGDPA) transfers all or some of the

State’s exclusive rights with respect to “works of original authorship” to members of the public

who seek access to the data or into the “public domain.”

A fundamental principle of federal copyright law is that “[i]n order for the holder of a

copyright to abandon his rights thereunder, he must perform some overt act which manifests an -

intent to surrender rights in the copyrighted material. Mere inaction or negative behavior will not

suffice.” lQodd, Mead & §§o. v. l¢jlienthal, 514 F.Supp. 105, 108 (S.D.N.Y. l981)(citations

omitted).3 If the question, then, is whether the state has expressly waived its right to exercise and

3 An analogous rule applies to the states’ constitutional immunity from suit in federal court

under the eleventh amendment, U.S. Const., amend. XI. States can waive their eleventh

amendment immunity by state statute or constitutional provision, or by taking some other

affimiative action in the context ofa particular federal program, but the U.S. Supreme Court has

insisted that, to be effective, the states’ waiver of immunity be “unequivocal.” See generally

AtascaderQ State i-lospita[ v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145 (1985);

Eennl]urst State Scth_l and [;lospital v. Haldernian, 465 U.S. 89, 99, 104 S.Ct. 900, 907 (1984).

No court would consider the absence of express state statutory authority to assert eleventh

amendment immunity to constitute a state waiver ofits federal constitutional right.

Rodney Sando, Coniinissioner

PagelO

December 4, 1995

enforce its intellectual property rights under the FCA, the answer is clearly no. There are no

generally applicable state statutes expressly relinquishing federal intellectual property rights.

The MGDPA does give the public the right to inspect and copy public government data.

Minn. Stat. § 13.03, subd. 3 (1994) provides that:

Upon request to a responsible authority or designee, a person shall be permitted to

inspect and copy public government data at reasonable times and places, and,

upon request, shall be informed of the data’s meaning

`State agencies, therefore, may not rely on the FCA to deny citizens either an opportunity to

inspect o_r to copy public data,4 In addition, the MGDPA also places restrictions on the amounts

that government agencies can charge for certain kinds of public government data:

~ Wlien a request under this subdivision involves any person’s receipt of copies or

b public government data that has commercial value and is a substantial and discrete

portion of or an entire fonnula, pattern, compilation, program, device, method,

technique, process, database, or system developed with a significant expenditure

of public funds by the agency, the responsible authority may charge a reasonable

fee for the information in addition to the costs of making, certifying, and

compiling the copies. Any fee charged must be clearly demonstrated by the

agency to relate to the actual development costs of the infonnation. 'l`he

responsible authority, upon the request of any person, shall provide sufficient

documentation to explain and justify the fee being charged ~~ .

4 'fhe Federal Copyright Act does contain a broad preemption provision, 17 U.S.C. § 301, and at

least one attorney general opinion has suggested that state agencies need not comply with state

open records laws if that would interfere with rights under the FCA. MW-3 07 Op. Atty. Gen.

Tex. 980 (1981) (“Moreover, the supremacy clause of the United States Constitution would

prohibit the custodian from following the Open Records Act where it conflicts with the copyright

law.”) Our view is that nothing in the Supremacy Clause would prohibit a state from waiving or

relinquishing its rights as a copyright holder, ifits legislature so decided. lt therefore is

reasonable to conclude that a state legislature can forfeit any part ofthat federal “bundle of

rights" should it deem such waiver to be in the public interest Tlie state cannot forfeit those

rights on behalf of third parties, however, so state agencies who acquire “original works of

authorship” from third parties cannot be compelled by the MGDPA to violate federal

prohibitions on copyright infringement To the extent then that compliance with the MGDPA

would compel an actual violation ofthe FCA, and subject the State to liability, the FCA controls.

_S_c_€, ;gs, Chave? v. Ajte Piiblico Press, 59 F.3d 539 (Sth Cir. 1995).

.

_ i

:;

.i

i

.

.

~....'....-

Rodney Sando, Coinmissioner

Pagell

Decernber 4, 1995

M. Other statutes expressly authorize selling govemment data at market values, e.g.__ Minn. Stat.

§ 16B.405 (1994) (software developed by state agencies); Minn. Stat. § ll6J.63 (1994) (reports,

publications and related publicity and promotional material of the department of trade and

economic development). Nevertheless, we do not believe the FCA provides state agencies with

a basis to refuse to comply with the fee restrictions in Minn. Stat. § 13.03, subd. 3 (1994).

The focus of the MGDPA is, of course, on a_c_c_e_s_s, and it is mostly silent on subsequent

ux of government data. Accordingly, Minn. Rule § 1205 .0300, subp. 2 (1993) provides that

“the responsible authority shall provide access to public data to any person, without regard to the

nature ofthat person’s interest in the data,” and does not govern subsequent use. It neither

authorizes nor prohibits private commercial sales, further reproductions, noncommercial

distributions, lending, displays, or»the preparation of derivative works without attribution, or any

of the other exclusive or nonexclusive rights set forth in the FCA. Requiring agencies to comply

with the state access, copying, and fee charging provisions of the state law, while allowing them

to use license or authorization agreements to enforce their other rights under the`f_ederal

copyright law would therefore give effect to both statutes. See generallv Minneapolis Star &

Tribune Co. v. Housinv and Redevelopment Authoritv. 310 Minn. 313, 324, 251 N.W.2d 620,

626 (1976) (harmonizing state open meeting law with statutory attorney-client privilege by

allowing public agencies to close meetings with attomeys to discuss pending or imminent

litigation).

The coinmissioiier’s opinion, however, concludes that the legislature that adopted the

MGDPA decided, by iinplication, to thereby forfeit the state’S federal copyright protections in

“original works ofauthorship" involving public datai According to the coinniissioner, “[t]he

Rodney Sando, Comniissioner

Page 12

December 4, 1995

history of specific legislative authorizations to sell data or claim intellectual property rights

indicates a legislative position that govemrnent entities do not have general authorization to `

make claim of intellectual property rights over public government data, If all government

entities could claim intellectual property rights in their public data, then there would be no need

for such specific authorizations to do so.” Opinion 94-057, at 3.

ln our view, that negative implication does not necessarily follow from the statutes cited.

Minn. Stat. § 116P.10 (1994), which authorizes the environment and natural resources trust fund

to share i_n receipts from copyrights to the extent of its share of the project’s funding, does not

address works authored by government agencies, To the extent, however, that that trust fund

makes grants to state agencies (which it does), it arguably demonstrates a legislative assumption

that those agencies may, under existing law, own copyrights in which the fund should share.

Likewise, Minn. Stat. § 16B.51 (1994), which authorizes the commissioner to sell “official

reports, documents, data, and publications of all kinds” and to delegate that authority to other

state agencies, appears less like a “specific authorization” and more like a general authorization

to take action consistent with the assertion of copyright ownership5 Minn. Stat:.§ 13.03, subd. 5

(1994) does clarify that “[n]othing in [the MGDPA] or any other statute shall be construed to

prevent a state agency, statewide system, or political subdivision from acquiring a copyright or

patent for a computer software program or components of a program created by that govemment

5 lndeed, Minn. Stat. § 16B.4l, subd. 2(t)(4) (1994) expressly directs the information policy

office at the department of administration to establish “information sales systems that utilize

licensing and royalty agreements to the greatest extent possible, together with procedures for

agency denial ofrequests for licenses or royalty agreements by commercial users or resellers of

the information.”

Rodney Sando, Commissioner

Page 13

December 4, 1995

agency.” Since, under federal law, copyright “subsists" from the time a work is first embodied in

a tangible medium, 17 U.S.C. § 102 (1988), state law could not prevent a state agency from

“acquirinlg»” a copyright in such data. '_fhe operative sentence in that subdivision is the second,

where it denies the public gregst to that data under the trade secret provisions in Minn. Stat.

§ 13.37 (1994). Without that provision, under our analysis, the government would have to

provide access and copying of that software, but could use a license or authorization to attempt to

impose restrictions on later use. 'fhe legislature presumably concluded that, to protect the state’s

interest in generating computer software, it needed to impose additional restrictions on even

public access for inspection purposes. We do not deduce from that provision a legislative

intention to forfeit the state’s rights as a copyright owner in all other public government data,6

The commissioner’$ opinion does raise important concerns about the impact intellectual

property claims may have on public access and use of public government data,” Opinion 94-057,

at 4. We share that concern. We also believe, however, that it is important to understand that the

agencies’ discretion over managing the use of their “original works of authorshipj’ remains

subject to significant constraints First of all, as previously explained, allowing state agencies to

assert the state’s intellectual property rights would not limit the right of the public to access and

copy public data; the only potential limits would be on subsequent use of some of that data.

6 We acknowledge that bills were introduced but not enacted in the 1994 legislative session

which would have expressly authorized agencies to “acquire" copyright protection. As the U.S.

Supreme Court has often cautioned, however, drawing positive inferences from legislative

inaction is risky. S_ee, egg i ll ne v. iv ett r u nc., 504 U.S. ____, 112 S. Ct. 2608,

2619 (1992), qutinO, limited States v. Price, 361 U.S. 304, 313, 80 S. Ct. 326, 330 (1960).

While the failure to enact proposed legislation can flow from a consensus ofopposition to the

principles embodied therein, that is not necessarily the case. One might as easily conclude that

there are and have been a variety ofopinions on intellectual property questions among those in

the state legislature who have confronted these issues.

Rodney Sando, Commissioncr

Pagel4

December 4, 1995

Second, we do not construe the FCA to give state agencies general authority to exploit the

commercial value of public government data beyond the recoupment of data development costs

contempliited in Minn. Stat. § 13.03, subd. 3 (1994), unless otherwise specified in state statute.

Finally third, even a private copyright owner’s “bundle of rights” is subject to a number

of statutory exceptions, the most important of which is the so-called “fair use” doctrine. Under

17 U.S.C. § 107 (1988), a fair use such as “criticism, comment, news reporting, teaching,

scholarship, or research” is not an infringement of the exclusive rights of a copyright owner. "l`he

courts ar_e to consider four factors in determining whether a particular use is a “fair use” under

the FCA:

~ 1. 'l`he purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the

copyrighted work. k "~-`~` '.

E. Pursuant to that statutory direction, the courts have adopted certain principles to guide future

decisions. First of all, commercial use of copyrighted material is “presumptively” an

infringement, and not a “fair use”; the “contrary presumption” applies to “noncommercial,

nonprofit activity.” Sonv Corp. v. Universal Citv§tudiosr Inc., 464 U.S. 417, 449, 104 S. Ct.

774, 792 (1984) (honie videotaping). Second, the scope of“fair use" is greater for informational

works than it is for more creative works. §tewart vl Abend, 110 S. Ct. 1750, 1769 (1990).

Tliird, unpublished works are generally entitled to more protection than published ones, because

Rodney Sando, Commissioner

Page15

December 4, 1995

“first publication” is considered a core part ofthe copyright owner’s “bundle of rights.” w

& Row_ Publishers` hic. v. Nation Enterprise§, 471 U.S. 539, 540, 105 S. Ct. 2218, 2220 (1985)

(I\I_ati_on’s|`pre-publication printing of excerpts from Gerald Ford’s memoirs held not to be a “fair

use”). 'fherefore, although we believe, for example, that state agencies have the authority to use

licensing or authorizing agreements to manage the subsequent sale or dissemination of taxpayer-

funded data for commercial purposes, we see no basis for concluding that state agencies have any

authority to use licensing or authorization agreements to protect themselves from criticism,

comment, or news reporting, to stifle research, teaching, or scholarship, or to in any way restrict

the “fair use” of public government data,

~‘ Our opinion, therefore, is that Mr. Boe had the right to inspect and copy the fish data as

required by the MGDPA and to use the underlying facts as he deemed appropriate, but the State

also had the legal authority to assert its rights under the FCA to manage the subsequent

distribution and use of its “original work of authorship.”

lt is, of course, ultimately the legislature’s role and responsibility to make or change

policy in this area.7 The management of the s_tate’s intellectual property raises akiiu'mber of

crucial policy issues: when to permit, when to encourage, and how to administer the commercial

_ use or resale of government data', what principles should determine whether the taxpayers or the

users of government information should bear the greater share of the costs of data generation and

compilation; what kind of guidelines should state and local government agencies have to

7 'l`here are policy arguments for placing strict limits on agency assertion ofintellectual property

rights both to prevent potential abuse and to offer citizens a greater measure of clarity about their

legal rights and responsibilities Sg, gg, Gellinan, 'l`win Evils: Governnient Copyright and

Copyright-Like Controls over Governinent lnformation, 45 Syracuse L. Rev. 999 (1995).

Rodney Sando, Conimissioner

Page 16

December 4, 1995

interpret concepts like “fair use”; and what impact will rapidly changing communications

technologies ha'/e on the public’s need and interest in a broader range of govemment

information We certainly encourage the legislature to consider these issues carefully.

Very truly yours,

HUBERT H. HUMPHREY 111

Attomey General__

KENNETH E. RASCHK_E, JR.

Assistant Attomey General

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