Wikilegal/The Interplay Between Federal Copyright Protection & New Jersey's Open Access Laws

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Background

The Wikimedia Foundation (Foundation) received an inquiry as to whether New Jersey’s Condition of Use Notice (Condition of Use Notice) can be interpreted as meaning that State information is in the public domain or is otherwise free content, and can therefore be posted to Commons. The relevant portion of the Condition of Use Notice states that “[t]he State of New Jersey has made the content of these pages available to the public and anyone may view, copy or distribute State information found here without obligation to the State, unless otherwise stated on particular material or information to which a restriction on free use may apply.” The Foundation's legal team cannot provide legal advice to the community due to U.S. legal ethics regulations; however this post describes some factors to consider when deciding whether these New Jersey State works are in the public domain.

Other Relevant New Jersey Notices

First, it should be clarified that although, as noted above, New Jersey State information can be viewed, copied, or distributed without obligation to the State, that does not necessarily mean that it is free content. The Notice on Copyright and Trademark Limitations states that there may be other restrictions on reuse of particular materials or information and that such restrictions would be noted. The Notice on Copyright and Trademark Limitations also explicitly states that New Jersey does not make any warranty that the materials are free of copyright or trademark claims or other restrictions or limitations on free use or display.

Federal Copyright v. State Open Access Laws

Generally, works created by state governments are subject to the same federal copyright protections as works made by an individual. However, a state can choose to release works that it owns into the public domain. New Jersey, like several other states, allows open access to state-owned public records. The Open Public Records Act ("OPRA"), codified at N.J.S.A. 47:1A-1, et. seq., permits any person to inspect and/or copy New Jersey government records (with some exceptions, such as redacted personal information within the records). There has been some discussion as to whether federal copyright protection would preempt such open records laws or whether records under these laws are in the public domain.

State court decisions have been divided on whether state government materials subject to open records laws are copyrightable. Courts in Florida and California have found that these works are not copyrightable. In Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004), a Florida district court held that Florida state agencies cannot claim copyright protection to prevent the copying and distribution of records made public by the Florida Constitution, even if such reuse was commercial. This court further stated that copyright protection could not be asserted in "public records" (unless the legislature specifically exempted such records from the public records law). Similarly, a California state court in County of Santa Clara v. Superior Court of Santa Clara County, 170 Cal.App.4th 1301 (2009), agreed with the court in Skinner and found that end-user restrictions on government works were incompatible with California's public records law.

New Jersey decisions also suggest that the state government may not be able to claim copyright protection over works subject to open records laws. The court in Board of Chosen Freeholders of the County of Burlington v. Tombs, 215 F. App'x 80, 81 (3d Cir. 2006), noted that "federal copyright law does not wholly displace state statutory or common law rights to public records." The New Jersey Government Records Council (GRC) has interpreted Tombs as standing for the proposition that copyright law does not prohibit access to a government record otherwise available under OPRA. However, no case has gone so far as to claim that records subject to OPRA are in the public domain.

On the other hand, New York case law suggests that a state may be able to claim copyright protection over works subject to open records laws. In County of Suffolk, New York v. First American Real Estate Solutions, 261 F.3d 179, 193 (2d Cir. 2001), the court found that New York's public records law permitted the county to maintain its copyright protections while complying with its obligation under the public records law. Some states, such as Oregon, Colorado, and Nevada, explicitly state that copyright protections still apply to works that are subject to open records law. The Oregon government has stated that “[t]he Public Records Law does not authorize public bodies to violate federal copyright law. A public body must permit a requester to inspect copyrighted materials, but should not make copies or allow someone else to make copies of such materials without the copyright owner's consent or on advice of legal counsel.” Colorado’s statute similarly states “[n]othing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record, and the state and its agencies, institutions, and political subdivisions are hereby specifically authorized to obtain and enforce such protection in accordance with the applicable federal law.” Nevada’s statute states “[t]his section does not supersede or in any manner affect the federal laws governing copyrights or enlarge, diminish or affect in any other manner the rights of a person in any written book or record which is copyrighted pursuant to federal law.”

Conclusion

The specific takeaways from this preliminary research are: (1) the Conditions of Use Notice does not rule out the possibility of copyright restrictions, so works should be evaluated on a case-by-case basis if the community does decide to include such works on any Wikimedia project; and (2) the law is not completely settled in New Jersey with regard to this matter, and there does not appear to be any consensus generally amongst the States as to the interplay between copyright protection and open records law.