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Court rules copyright in maps does not offend open records law

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    NMU         SECOND CIRCUIT         Copyrights & Trademarks         Aug 2, 2001    

Court rules copyright in maps does not offend open records law

  • A New York county can own a copyright interest in maps it produces and can withhold them from a commercial entity which wanted to distribute them, the Second Circuit decided, finding that copyright protection can co-exist with the state’s open records law.

The U.S. Court of Appeals in New York (2nd Cir.) determined that a county government could protect a copyright interest in its official maps while still complying with the state’s Freedom of Information Law. The case decided July 25 was remanded to the district court for further proceedings.

In its lawsuit, Suffolk County sued First American and other companies under the Copyright Act for infringing the county’s copyrights of its official maps by publishing and marketing the maps without the county’s permission.

First American argued the county could not use its copyrights of the official tax maps to preclude the company from freely publishing and distributing them.

The federal district court had determined that New York state’s Freedom of Information Law allowed First American the right to freely copy and distribute Suffolk County’s maps and that the county could not prohibit the company from copying or distributing the maps by asserting a copyright infringement. Most states do not copyright government records, and the federal government does not copyright any government documents.

In 1974, Suffolk County began creating and designing “a series of original maps (tax maps) and an index system reflecting the ownership, size, and location of the real property, which it was required by a New York property law to create and make available to the public.”

Suffolk County argued the tax maps are original material and “the result of substantial work, effort and expense.” It copyrights all the maps and places a notice of a copyright on the maps.

The appellate court said the FOIL “did not specifically address the impact on a state agency’s copyright.” The state open records law provides, “Each agency shall, in accordance with its published rules, make available for public inspection and copying all records.”

The court concluded, “It is one thing to read this provision to permit a member of the public to copy a public record, but it is quite another to read into it the right of a private entity to distribute commercially what it would otherwise, under copyright law, be unable to distribute.”

The company argued the Freedom of Information Law barred the county from owning a copyright in its map. The lower court was persuaded by this argument and dismissed the county’s claim of copyright infringement.

The appeals court said that First American feared “that state agencies, armed with the weaponry of copyright infringement suits, will convert FOIL’s maximum access into a reality of minimum access.”

The court rejected First American’s argument that the county’s copyrights violated FOIL because the copyrighted maps were still available for public inspection. “First American ignores the fact that the free press or an individual seeking to use the state agency records to educate others or to criticize the state or the state agency may be protected by the Copyright Act’s fair use doctrine,” the court said.

(County of Suffolk v. First American Real Estate Solutions; Attorney for First American: Andrew Deutsch, New York City) AP

© 2001 The Reporters Committee for Freedom of the Press

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