Can a Minnesota state agency assert federal copyright in original data it produces and require members of the public who want to sell or distribute copies to enter a license agreement, while still complying with the Government Data Practices Act?

Plain-English summary

Stephen Boe requested access to and copies of maps and other data developed by Department of Natural Resources (DNR) staff concerning Cass Lake muskellunge. The DNR told Boe he was free to view and copy, but his right to subsequently use the data was subject to DNR's federal copyright. Photocopies and notes would carry the DNR's copyright notice, and Boe would need a license to publish or otherwise commercially use the data.

Boe objected and asked the commissioner of administration to issue a Data Practices Act opinion. Acting Commissioner Robert Schroeder concluded in Opinion 94-057 that the MGDPA requires state agencies to permit unrestricted use of public data, even for commercial purposes, absent specific statutory authority to the contrary. The acting commissioner said DNR's position was impermissible.

DNR Commissioner Rodney Sando then asked AG Humphrey for an opinion under Minn. Stat. § 8.06, which under § 13.072, subd. 1(c) takes precedence over the commissioner of administration's opinion.

Assistant AG Kenneth Raschke, signing for AG Humphrey, sided with DNR. The state may assert federal copyright in original works of authorship, including against subsequent commercial use of public data, subject to three categories of limits.

Federal copyright applies to state agencies. The Federal Copyright Act (17 U.S.C. § 102(a)) protects "original works of authorship fixed in any tangible medium." It excludes works of the U.S. government (§ 105) but contains no parallel exclusion for state governments. National Conference of Bar Examiners v. Multistate Legal Studies (N.D. Ill. 1980, aff'd 7th Cir. 1982) confirmed state-government copyright. The Copyright Remedy Clarification Act of 1990 (§ 511) includes "any governmental or nongovernmental entity" within copyright-suit standing, reinforcing that state and local governments can be copyright owners. DNR maps, charts, technical drawings, compilations, and similar materials are within § 102(a)'s reach.

Minnesota agencies have authority to manage copyright. No express Minnesota statute grants agencies copyright authority, but several provisions fairly imply it: § 15.95 (intellectual property rights as a topic for the government information access council), § 16B.483 (AG review of agency intellectual property contracts), § 138.17 (records management), § 16B.51 (commissioner of administration may sell official reports and may delegate to agencies), § 16B.52 (publications must carry the agency's imprimatur). Peoples Natural Gas v. PUC (Minn. 1985) allows agency power to be drawn from express statutory authority by fair implication; that standard is met for copyright management.

The MGDPA does not waive copyright. The MGDPA's central thrust is access: § 13.03, subd. 3 gives the public the right to inspect and copy public government data at reasonable times. But § 201(d) of the Copyright Act provides that copyright ownership can be transferred "by operation of law"; the question is whether the MGDPA so transfers. Federal law requires an "unequivocal" waiver of state intellectual property rights, mere inaction or absence of express assertion is not enough (Dodd, Mead & Co. v. Lilienthal). The MGDPA contains no explicit waiver. The fact that the legislature in § 13.03, subd. 5 specifically addressed agency copyright in software (allowing it for software) does not imply waiver for other types of data, especially given the canons against drawing strong inferences from legislative non-action (Cipollone v. Liggett Group).

Three categorical limits. The AG narrowed the result with three important restrictions on agency copyright assertion:

1. The data must come within the scope of "original works of authorship" under the Federal Copyright Act. Mere factual content is not copyrightable; only the original selection, arrangement, or expression is (Feist Publications v. Rural Telephone Service).

2. The agency may not impose restrictions beyond its FCA rights. The agency may license commercial redistribution, restrict derivative works, and limit further public distribution under § 106, but it may not restrict "fair use" under § 107 (criticism, comment, news reporting, teaching, scholarship, research).

3. The agency may not use copyright to deny access or to charge fees beyond § 13.03, subd. 3's authorization. For data with commercial value developed at significant public expense, fees beyond costs of making copies must "relate to the actual development costs" of the data and be justified to the requester.

Where federal law prevails. When state agencies acquire copyrighted works from third parties, the MGDPA does not compel violation of the third-party copyright (citing Chavez v. Arte Publico Press, 5th Cir. 1995, on state-agency copyright issues). The Supremacy Clause and the federal copyright statute control when state law would force agencies to infringe.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The MGDPA has been substantially amended since 1995, the Federal Copyright Act has been updated repeatedly, and Minnesota agency information-sales practices have evolved through legislation and litigation. The conceptual structure (federal copyright applies to state agencies; MGDPA access rights are separate from copyright in subsequent use; fair use applies regardless) appears to remain established, but specific provisions and current practice should be verified.

Historical context: what the AG concluded

The opinion is a major exposition of the intersection between federal copyright law and Minnesota's strong open-records regime. It is one of the most-cited Minnesota AG opinions on government data practices.

The federal copyright framework. Title 17 of the U.S. Code is comprehensive. Section 102(a) defines copyrightable works as "original works of authorship fixed in any tangible medium of expression." Section 103 extends protection to compilations. Section 106 gives the copyright owner exclusive rights to reproduce, prepare derivative works, distribute copies, perform, and display. Sections 107-120 carve out exceptions, including fair use (§ 107). Section 201(a) vests copyright in the author; § 201(b) treats works for hire as authored by the employer. Section 201(d) provides that copyright ownership can be transferred by operation of law.

The constitutional source is U.S. Const. art. I, § 8, granting Congress 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 writings and discoveries."

State governments as copyright owners. Section 105 expressly excludes works of the U.S. government from copyright. The Act has no parallel exclusion for state or local government works. The negative implication, supported by case law (Multistate Legal Studies) and Copyright Office practice, is that state and local governments can hold copyright. Edicts of government (statutes, regulations, judicial opinions) may be in the public domain by case law (Building Officials & Code Administrators v. Code Technology, 1st Cir. 1980), but most other agency-produced data is copyrightable.

The fair use doctrine. Section 107 lists four factors: purpose and character of the use (commercial vs. nonprofit educational), nature of the work, amount and substantiality used, effect on market for the work. Sony Corp. v. Universal City Studios establishes a presumption of infringement for commercial use and a presumption of fair use for noncommercial nonprofit use. Stewart v. Abend recognizes broader fair use for informational than for creative works. Harper & Row v. Nation Enterprises protects unpublished works more strictly. The AG concluded that fair use uses (criticism, news reporting, scholarship) are categorically protected, and an agency cannot license those uses.

The MGDPA framework. The Minnesota Government Data Practices Act (Minn. Stat. ch. 13) establishes a strong presumption of public access to government data. Section 13.03, subd. 3 grants the right to inspect and copy public data; agencies cannot deny that right. The section also restricts agency fees for data with commercial value developed at significant public expense to "reasonable fee[s] ... clearly demonstrated by the agency to relate to the actual development costs of the information." So the MGDPA caps how much an agency can charge for the initial access.

Where copyright ends and MGDPA begins. The opinion threads the needle: copyright governs subsequent use; MGDPA governs initial access and the fee for that access. Copyright cannot be used to deny inspect/copy rights. MGDPA cannot be used to waive subsequent-use rights. The two regimes operate in parallel.

The Minneapolis Star harmonization principle. Minneapolis Star v. Housing and Redevelopment Authority (Minn. 1976) had earlier harmonized the open meeting law and the attorney-client privilege by allowing closed meetings on pending or imminent litigation. The AG applied the same harmonization approach: read MGDPA access rights and federal copyright in subsequent use together so both regimes are given effect.

The commissioner's opposite view. The acting commissioner of administration had reached the opposite result in Opinion 94-057, reasoning that the legislature's specific authorization of software copyright (§ 13.03, subd. 5) implied that other data could not be copyrighted. The AG rejected this negative-implication reasoning. Cipollone v. Liggett Group (1992) and United States v. Price (1960) caution against drawing strong inferences from legislative inaction. The software provision exists for a particular reason (it also denies public access to copyrighted software under the trade-secret provisions in § 13.37); the AG did not read it as a forfeiture of copyright authority over all other data.

Practical limits. The AG repeatedly emphasized that:
- Inspect and copy rights cannot be denied.
- Fees for development-cost-related data are capped at the agency's actual development costs.
- Fair use is protected and cannot be licensed away.
- Authority to commercialize is narrowly construed; statutory authority is required for genuine market-rate sales beyond development cost recoupment.

Policy invitation. The AG ended by noting that intellectual property in government data raises important policy issues and inviting the legislature to consider them more comprehensively. The 1990s and early 2000s saw substantial legislative activity on this front.

Common questions

Q: I'm a journalist who wants to use a Minnesota state agency map in a news article. Do I need a license?
A: Under the 1995 opinion, no, if your use is fair use. News reporting is one of the example fair use categories in 17 U.S.C. § 107. An agency cannot use a copyright license to restrict fair use of its data.

Q: I want to sell GIS data from a Minnesota state agency in a commercial product. Do I need a license?
A: Under the 1995 opinion, yes, the agency can require a license for commercial redistribution. Commercial use is presumptively not fair use (Sony Corp.), so it falls within the agency's right to license. The agency can charge a license fee, but the agency's authority is limited; market-rate fees may require specific statutory authority beyond § 13.03.

Q: Can the agency refuse to let me see the data because it has copyright?
A: No. The MGDPA inspect/copy rights cannot be denied based on copyright. The 1995 opinion is clear: copyright governs subsequent use, not initial access.

Q: How much can the agency charge me to copy the data?
A: Under § 13.03, subd. 3, the agency can charge the costs of making, certifying, and compiling the copies. For data with commercial value developed at significant public expense, the agency can also charge a reasonable fee that "relate[s] to the actual development costs of the information." The agency must justify the fee on request.

Q: I'm an academic researcher. Do I need a license?
A: Research and scholarship are example fair use categories. Under the 1995 opinion, agency licensing cannot restrict fair use, so academic research use should not require a license. But the line between research-only and commercial publication can be fact-specific; consult an attorney if you plan to publish.

Q: What if the data is not original (just raw factual measurements)?
A: The AG's first restriction is critical: the data must come within "original works of authorship." Raw factual content (a measurement of water depth, a temperature reading) is not copyrightable under Feist Publications v. Rural Telephone Service. Only the original selection, arrangement, or expression is. Genuinely raw factual data is public-domain regardless of what the agency claims.

Q: Can the agency restrict my use after I have a copy by claiming "no commercial use" in a license I never signed?
A: Whether a license requirement is enforceable depends on copyright law and contract law. The agency can require a license for the agency to provide a copy; once the public-domain factual content is identified and used, the agency's copyright assertion is limited to the originally-expressive portions of the work. Specific application requires legal analysis of the particular use.

Background and statutory framework

The Federal Copyright Act of 1976 (17 U.S.C.) is the primary U.S. copyright statute. It replaced the 1909 Act and made copyright automatic upon fixation (no notice or registration required). Section 105's exclusion of U.S. government works is a federal-policy choice; states are not similarly excluded. The Copyright Office at the Library of Congress recognizes state-government works as copyrightable (Compendium II § 206.03).

The Minnesota Government Data Practices Act (Minn. Stat. ch. 13) establishes a presumption that government data is public and accessible. The statute reflects Minnesota's strong open-records tradition. The fee provisions in § 13.03, subd. 3 reflect a balance between public access and the cost of producing data that has commercial value. Other Minnesota statutes (§§ 16B.483, 16B.51, 16B.52, 116P.10) address aspects of state intellectual property management.

The interplay between federal copyright and state open-records laws is a recurring tension in many states. Some states (Texas, see MW-307 Op. Atty. Gen. Tex.) have read federal preemption broadly. The Minnesota AG's 1995 approach is a middle path: federal copyright applies, but state law access rights are not preempted and operate alongside copyright.

Hubert H. Humphrey III was Minnesota AG from 1983 through January 1999. Kenneth E. Raschke, Jr. signed as Assistant AG. The opinion was issued under Minn. Stat. § 8.06, which gives an AG opinion precedence over a commissioner of administration opinion on the same question (§ 13.072, subd. 1(c)).

Citations and references

Federal statutes:
- U.S. Const. art. I, § 8 (copyright clause)
- 17 U.S.C. § 102(a) (1988) (copyright subsists in original works of authorship)
- 17 U.S.C. § 103 (1988) (compilations and derivative works)
- 17 U.S.C. § 105 (1988) (federal government works excluded; state not similarly excluded)
- 17 U.S.C. § 106 (1988) (exclusive rights of copyright owner)
- 17 U.S.C. § 107 (1988) (fair use)
- 17 U.S.C. § 201(a) (1988) (copyright vests in author)
- 17 U.S.C. § 201(b) (1988) (works for hire)
- 17 U.S.C. § 201(d) (transfer by operation of law)
- 17 U.S.C. § 301 (preemption)
- 17 U.S.C. § 511 (1988) (governmental entity standing)

Minnesota statutes:
- Minn. Stat. § 8.06 (1994) (AG opinions)
- Minn. Stat. ch. 13 (1994) (Government Data Practices Act)
- Minn. Stat. § 13.03, subd. 3 (1994) (access right and fees)
- Minn. Stat. § 13.03, subd. 5 (1994) (computer software copyright)
- Minn. Stat. § 13.072, subd. 1(a) (commissioner of administration opinions)
- Minn. Stat. § 13.072, subd. 1(c) (AG opinion precedence)
- Minn. Stat. § 13.37 (1994) (trade secret data)
- Minn. Stat. § 15.17, subd. 2 (1994) (records preservation)
- Minn. Stat. § 15.95, subd. 5(8) (1994) (intellectual property; government information council)
- Minn. Stat. § 16B.41, subd. 2(f)(4) (1994) (information sales systems)
- Minn. Stat. § 16B.405 (1994) (state software sales)
- Minn. Stat. § 16B.483 (1994) (AG review of intellectual property contracts)
- Minn. Stat. § 16B.51 (1994) (commissioner of administration; sales of state reports)
- Minn. Stat. § 16B.52 (1994) (state agency imprimatur on publications)
- Minn. Stat. § 116J.63 (1994) (sales by trade and economic development)
- Minn. Stat. § 116P.10 (1994) (environment and natural resources trust fund copyright royalty)
- Minn. Stat. § 138.17 (1994) (records management)
- Minn. R. § 1205.0300, subp. 2 (1993) (data access)

Cases:
- Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S. Ct. 1282 (1991) (originality required for copyright; facts not copyrightable)
- National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34 (N.D. Ill. 1980), aff'd 692 F.2d 478 (7th Cir. 1982), cert. denied 464 U.S. 814 (1983) (state government can hold copyright)
- Building Officials & Code Administrators v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980) (edicts of government may be public domain)
- Peoples Natural Gas Co. v. Minnesota Public Utilities Commission, 369 N.W.2d 530 (Minn. 1985) (agency power may be implied from express authority)
- Dodd, Mead & Co. v. Lilienthal, 514 F. Supp. 105 (S.D.N.Y. 1981) (copyright abandonment requires unequivocal overt act)
- Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 (1985) (state Eleventh Amendment immunity waiver must be unequivocal)
- Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984) (same)
- Chavez v. Arte Publico Press, 59 F.3d 539 (5th Cir. 1995) (state agency copyright issues)
- Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774 (1984) (fair use; commercial vs. noncommercial presumptions)
- Stewart v. Abend, 110 S. Ct. 1750 (1990) (broader fair use for informational works)
- Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218 (1985) (unpublished works receive more protection)
- Minneapolis Star & Tribune Co. v. Housing and Redevelopment Authority, 310 Minn. 313, 251 N.W.2d 620 (1976) (harmonizing competing statutes)
- Cipollone v. Liggett Group, Inc., 504 U.S. ___, 112 S. Ct. 2608 (1992) (drawing inferences from legislative inaction is risky)
- United States v. Price, 361 U.S. 304, 80 S. Ct. 326 (1960) (same)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/852-19951204.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

DATA PRACTICES: COPYRIGHT: STATE AGENCY DATA: 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, 16B.483, 16B.51, 16B.53.

852
(Cr. Ref. 315a)
December 4, 1995

Rodney Sando, Commissioner
Department of Natural Resources
DNR Bldg., 6th Floor
500 Lafayette Road
St. Paul, Minnesota 55155

Dear Commissioner Sando:

In your letter to Attorney General Hubert H. Humphrey III, you request an opinion of the attorney general pursuant to Minn. Stat. § 8.06 (1994) which, under 13.072, subd. 1(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. The 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. § 102(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. 1(a) (1994), requested an opinion of the commissioner of administration. 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 of that 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:

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 Government Data Practices Act?

OPINION

We answer your question in the affirmative, 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 of Minn. 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 an amount more than can be justified in relation to the actual development costs of the data, unless otherwise specifically authorized by statute.

Our basic conclusion is that, although the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. ch. 13 (1994), generally does not permit state agencies to withhold access to "public" government data, it does not follow that the MGDPA prohibits state agencies from placing reasonable restrictions on the use of their "original works of authorship," consistent with the rights of a copyright owner under the Federal Copyright Act (FCA).

[The opinion continues with extensive discussion of federal copyright law, state data practices and records management laws, federal preemption, and the fair use doctrine. The full text is reproduced from the PDF at https://www.ag.state.mn.us/Office/Opinions/852-19951204.pdf.]

It is, of course, ultimately the legislature's role and responsibility to make or change policy in this area. The management of the state's intellectual property raises a number 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 interpret concepts like "fair use"; and what impact will rapidly changing communications technologies have on the public's need and interest in a broader range of government information. We certainly encourage the legislature to consider these issues carefully.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General