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?

View original AG opinion (PDF)

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. It may condition later copying, derivative works and public distribution of protected expression under § 106, but it may not restrict a use that qualifies as "fair use" under § 107.

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. Verify current statutes and later decisions before relying on its conclusions about access, fees, copyright or fair use.

Historical context: what the AG concluded

The opinion addresses the intersection between federal copyright law and Minnesota's government data access rules.

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 opinion cites Multistate Legal Studies and Copyright Office practice to support state and local government copyright in otherwise eligible works. It also discusses limits for edicts of government and unprotected facts.

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, and effect on the market for the work. The opinion cites Sony Corp. v. Universal City Studios for presumptions concerning commercial and nonprofit use, Stewart v. Abend on informational works, and Harper & Row v. Nation Enterprises on unpublished works. An agency cannot restrict a use that qualifies as fair use; the listed purposes do not decide every individual case.

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 identifying policy questions about commercial use, costs and fair use, and encouraged the legislature to consider them.

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 copies of a Minnesota agency map. Do I need a license? A: Under the 1995 opinion, an agency may require a license for later distribution of copyrightable expression in its map. The underlying facts are free to use, and fair use remains available. The opinion does not give agencies general authority to exploit the commercial value of public data beyond recouping development costs without specific state statutory authority.

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: The opinion says an agency cannot use a license to restrict fair use, and names research and scholarship as examples. Whether a particular use qualifies depends on the Copyright Act's fair use factors.

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 an agency make me sign a license before it gives me a copy of public data? A: The opinion says an agency may not use its copyright to deny the public's right to inspect and copy public data. A license may govern later uses within the agency's copyright rights, but the opinion does not make a license a condition of obtaining the public copy.

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).

F�deral copvright law

The Federal Copyright Act (FCA) provides that:

.. Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now knov-m or later developed, from which they can be perceived, reproduced, or otherwise communicated, either dir�ctly or with the aid of a machine or device.

17 U.S.C. § 102(a) (1988). The purpose of the 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 \.Tititigs 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"-­

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

That includes "pictorial, graphic 1 and sculptural works" such as "maps, globes, charts, diagrams,

models, and technical drawings," as \Vell as "literary works," defined as "works expressed in

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

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Rodney Sando, Commissioner
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December 4, 1995

material objects, such as books, periodicals, manuscripts, phonorecords, film, 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 "formed

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). It is, of course, notethe underlying facts themselves that

are copyrightable, but rather the particular selection or arrangement chosen. Feist Publications .

Inc. v. R�ral Telephone Service Co., 499 U.S. 340, 111 S. Ct. 1282 (1991); see also Kidwell,

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

• .. Contrary to a common misperception, no application is required to secure copyrighte

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, 1 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 "subsists" from the ••L.

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

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. § 201(b) (1988). Subject to a number of

1
The familiar copyright notice, e.g., "Copyright 1995 Jane Doe," is optional, as is copyright registration with the Copyright Office. Under the Berne 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 claimi ng "innocent infringement" or making other arguments to avoid or reduce the size of infringement damages awards.

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Rodney Sando, Commissioner
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December 4, 1995

exceptions, 17 U.S.C. §§ 107-120 (1988), the O\mer of a copyright has the exclusive right to do

or to authorize any of the following:

(1)o to reproduce the copyrighted \Vork in copies or phonorecords;o

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

(3)o to distribute copies or phonorecords of the copyrighted work to the publico by sale or other transfer of ownership, or by rental, lease, or lending;o

(4)o in the case of literary, musical, dramatic, and choreographic works,o pantomimes, and motion pictures and other audiovisual works, to perform theo copyrighted work publicly; ando

(5)o in the case of literary, musical, dramatic, and choreographic works,o pantomimes, and pictorial, graphic, or sculptural works, including the individualo images of a motion picture or other audiovisual work, to display the copyrightedo ..owork
.. publicly.o

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 federal 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 governn1ental entity, the United States of America, is excluded

from the protection of the Act." National Conference of Bar Examiners v, Multistate Legal

Studies, Inc., 495 F. Supp. 34, 35 (N.D. Ill. 1980), nffd, 692 f.2d 478 (7th Cir. 1982), rn:L

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Rodney Sando, Commissioner
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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 l
Copyright Office Practices Compendium II § 206.03, cited in John \V. Hazard, Jr., Copyright

Law in Business and Practicee, para. 4.3[3) at 4-22 (1989):

Coyrightable government works. Works (other than edicts of government/ prepared by officers or employees of any government (except the U.S.
Government) including State, local, or foreign governments, are subject to registration if they are othernise 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.

§e511 (1988). See also Kidwell, Open Records La\VS and Copyright, 1989 \Vis. L. Rev. 1021,e

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 federalfaw, 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. �'�'Building Officials & Code Administrators v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980); see generally 1 M. Nimmer and D. Nimmer, Copyright, § 5.06(C] (1993); Patterson and Joyce, Monopolizing the Law: The Scone of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989).

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Rodney Sando, Commissioner
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December 4, 1995

State data practices and records management laws

Government agencies are, of course, creatures of statute and possess only those pO\vers

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

The 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.

Peoples Natural Gas Co. v. Minnesota Public Utilities 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."

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

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 ackno\vledges the existence

of those rights, and is inconsistent with the view that the legislature has already 'relinquished

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 attorney 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.

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Rodney Sando, Commissioner
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December 4, 1995

Other statutes expressly delegate to state agencies the authority and responsibility to
preserve, transfer, sell and other.vise manage government records. Those statutes are all
consistent with the idea that state agencies are to act as the responsible mvners 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

·esubdivision of government to cooperate with the commissioner [of administration] ... toe
establish and maintain an active, continuing program for the economical and efficiente
managen:ient of the records of each agency, county, municipality or other subdivision ofe
government." The record retention statute, Minn. Stat.§ 15.17, subd. 2 (1994) likewise creates ae
duty ef "preservation and care" of government records in the chief administrative officer of eache
agency.e

Minn. Stat.§ 138.17, subd. lc(3) (1994) gives the historical society, which is the
ultimate depository for most state agency data, the authority to deny public access to

"proprietary information, including computer programs and software and other !l'.pes of
information manufactured or marketed by persons under exclusive legal right, O.vned by the

! agency or entrusted to it." Minn. Stat.§ 16B.5 l, subd. 3 (1994) provides that the commissioner 1
;
I
of administration may sell, not just "certain 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.

Like\.:ise; Minn. Stat. § 16B.52, subds. 1 and 2 (1994) seems to support state agencies'
assertion of ownership of intellectual property, by providing that any "report or publication paid
for from public funds must carry the imprim::itur of the agency under whose authority it is

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Rodney Sando, Commissioner
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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 I publications of all kinds issued by the state when not otheffi'ise prescribed by law."

At minimum, those provisions delegate general management authority over government

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

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

preserve federal copyright O'wnership rights.

�ection20l(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 oflaw," and so, the question is

whether the Minnesota Government 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 \Vill note

suffice." Dodd, Mead & Co. v. Lilienthal, 514 F.Supp. 105, 108 (S.D.N.Y. 1981)(citationse

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

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 affim1ative action in the context of a particular federal program, but the U.S. Supreme Court has insisted that, to be effective, the states' waiver of immunity be "unequivocal." See generally Atascadero State Hospital v. Scanlon, 4 73 U.S. 234,238, 105 S.Ct. 3142, 3 I 45 (1985); Pennhmst State School and Hospital v. Halderman, 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 of its federal constitutional right.

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Rodn�y Sando, Commissioner
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December 4, 199 5

enforce its intellectual property rights under the FCA, the ans\ver 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 too 4 inspect or to copy public data. In addition, the MGDPA also places restrictions on the amountso

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

.. When a request under this subdivision involves any person's receipt of copies or •opublic government data that has commercial value and is a substantial and discreteo portion of or an entire formula, pattern, compilation, program, device, method,o technique, process, database, or system developed with a significant expenditureo of public funds by the agency, the responsible authority may charge a reasonableo fee for the information in addition to the costs of making, certifying, ando compiling the copies. Any fee charged must be clearly demonstrated by theo agency to relate to the actual development costs of the information. Theo responsible authority, upon the request of any person, shall provide sufficient , ... documentation to e�plain and justify the fee being charged.o

4
The 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-307 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 \vith 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, if its legislature so decided. It therefore is reasonable to conclude that a state legislature can forfeit any part of that federal "bundle of rights" should it deem such waiver to be in the public interest. The 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 of the FCA, and subject the State to liability, the FCA controls. S ee,�. Chavez v. Arte Publico Press, 59 F.3d 539 (5th Cir. 1995).

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Rodney Sando, Commissioner
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December 4, 1995
l.d. Other statutes expressly authorize selling go\'ernment data at market values,� Minn. Stat.

§e16B.405 (1994) (software developed by state agencies); Minn. Stat.§ 1161.63 (1994) (reports,e I 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 access, and it is mostly silent on subsequent
use 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 of that person's interest in the data," and does not govern subsequent use. It neither
auth�zes 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 -.
.Vith the state access, copying, and fee charging provisions of the state law,while allowing them
to use license or authorization agreements to enforce their othe_r rights under the federal ·•'--·

copyright law would therefore give effect to both statutes. See genera1)v Minneapolis Star &e

Tribune Co. v. Housing and Redevelopment Authority, 310 Minn. 313,324,251 N.\V.2d 620,

626 (1976) (harmonizing state open meeting law with statutory attorney-client privilege by
allowing public agencies to close meetings with attorneys to discuss pending or imminent
litigation).

The commissioner's opinion, however, concludes that the legislature that adopted the

MGDPA decided, by implication, to thereby forfeit the state's federal copyright protections in

"original works of authorship" involving public data. According to the commissioner, "[t]he

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Rodney Sando, Commissioner
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December 4, 1995

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

indicates a legislative position that government 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.

In 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 �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

make5egrants
. to state agencies (which it does), it arguably demonstrates a legislative asswnptione

that those agencies may, under existing law, O\TI 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 \vith the assertion of copyright ownership. 5 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 government

5
Indeed, Minn. Stat.§ 16B.41, subd. 2(f)(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 of requests for licenses or royalty agreements by commercial users or resellers of the information."

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Rodney Sando, Commissioner
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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. § l 02 (1988), state law could not prevent a state agency from

"acquiring" a copyright in such data. The operative sentence in that subdivision is the second,

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

§ 13 .37 (1994). Without that provision, under our analysis, the government would have toe

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

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

interest i!l 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

intenti?n to forfeit the state's rights as a copyright owner in all _other public government data.6

The commissioner's 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 ,vorks of authorship" remains ··'-·

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

assert the state's intellectual property rights would not limit the right of the public to access ande

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

6
\Ve acknowledge that bills ,vere 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. �.�.Cipollone v. Liggett Group, Inc., 504 U.S. __, 112 S. Ct. 2608, 2619 (1992), quoting United States v. Price,361 U.S. 304,313, 80 S. Ct. 326,330 (1960).
\Vhile the failure to enact proposed legislation can flow from a consensus of opposition to the principles embodied therein, that is not necessarily the case. One might as easily conclude that there are and have been a variety of opinions on intellectual property questions among those in the state legislature who have confronted these issues.

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Rodney Sando, Commissioner
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December 4, 1995

Second, we do not construe the FCA to gi \·e state agencies general authority to exploit the

commercial value of public government data beyond the recoupment of data development costs I contemplated in Minn. Stat. § 13 .03, subd. 3 ( 1994 ), unless otherwise specified in state statute.

Finally third, even a private copyright ov.,11er's "bundle ofrights" is subject to a number

ofstatutory 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, ?ews reporting, teaching,

scholarship, or research" is not an infringement of the exclusive rights of a copyright o.-11er. The

courts ar� to consider four factors in determining whether a particular use is a "fair use" under

theFCA:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2.e The nature of the copyrighted work;e

3.e The amount and substantiality of the portion used in relation to thee copyrighted work as a whole; ande

4.e The effect of the use upon the potential market for or value of thee · copyrighted w9rk.
L.

Id. 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 Studios, Inc., 464 U.S. 417,449, 104 S. Ct.

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

works than it is for more creative works. Ste\vart v, Abend, 1 IO S. Ct. 1750, 1769 (1990).

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

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Rodney Sando, Commissioner
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December 4, 1995

"first publication" is considered a core part of the copyright owner's "bundle of rights." Harper

& Row. Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 540, 105 S. Ct. 2218, 2220 (1985)

(Nation's'pre-publication printing of excerpts from Gerald Ford's memoirs held not to be a "fair

use"). Therefore, 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,

commen�, or news reporting, to stifle research, teaching, or scholarship, or to in any \Vay 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 MGDP A 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 \Vork of authorship."

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