Additional Copyright Resources

Fair Use

The FCA gives the owner of a copyright the right to reproduce or authorize others to reproduce any copies of a copyrighted document. The FCA includes some limitations, however, on an owner’s right to restrict reproduction of the work. One of the more important limitations is the doctrine of “fair use.” Section 107 of the FCA contains a list of purposes which can be classified “fair use purposes,” including things such as criticism, commenting, news reporting, teaching, scholarship or research. If one of these purposes exists, an original work may be disclosed without fear of repercussions under the FCA. When evaluating a “fair use” claim, a court must consider the following four factors in determining whether a particular use is for a fair use purpose:

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

Case Law

In National Council on Teacher Quality v. Minnesota State Colleges & Universities, 837 N.W.2d 314 (Minn. Ct. App. 2013), a nonprofit research organization requested copies of faculty-authored syllabi from MnSCU under the Data Practices Act. MnSCU refused to disclose the syllabi, arguing that releasing the data would subject them to liability under the Federal Copyright Act because they did not own the copyright for the syllabi because copyright ownership belongs to the faculty member who created the data. MnSCU argued that without the permission of the faculty members, the syllabi are only available for inspection.

The Minnesota Court of Appeals held that MnSCU was required to provide copies of the written syllabi to NCTQ under the Minnesota Data Practices Act, even though the syllabi are protected under federal copyright law. The Court did not rule on MnSCU’s argument that it might be subject to liability for copyright infringement if the data were used inappropriately, but instead focused on NCTQ’s claim that the use of the data qualified as “fair use” under the FCA. Because NCTQ’s mission is to “promote research-based educational system reforms,” the court held that there is no violation of the FCA, and ordered MnSCU to make the data available to the NCTQ for inspection and copying.

The Court of Appeals did not rule on whether a government entity could disclose copyrighted data without knowledge of “fair use.” In this situation, if there is a request for copyrighted data, an entity could allow for the inspection of copyrighted data, but not copies. If a requester subsequently informs the entity that the use of the data qualifies as a “fair use” purpose, an entity could provide copies even without the express permission of the copyright holder.

Additional Copyright Related Commissioner of Administration Advisory Opinions

Opinion 00-006 St. Louis County required users to pay for offsite access to property and tax information (public data.) The subscriber agreement included language that users could not reproduce any information without the County’s prior written permission, claiming federal copyright.

The Commissioner opined that gaining access to data includes both inspecting data and obtaining copies of data. The County cannot use federal copyright to restrict the requester’s right to make copies of the data.

Opinion 00-042 A public access cable station aired a television program, and a member of the public requested a copy. The station was run by the Cable Commission, a government entity. The Cable Commission claimed that it did not own the copyright to the requested video, and so could not provide the requester with a copy.

The Commissioner of Administration opined that the Cable Commission may not deny public access to public government data for the purposes of inspection on the basis that it does not own the copyright to the data. If the Cable Commission had a copy of the program, it had to provide the requester with an opportunity to inspect it. It did not need to supply the requester with a copy of the program.

Opinion 02-012 The City of Hopkins treats its building plans as public data, but some of the plans are copyrighted. Hopkins allowed inspection of copyright building plans, but required permission from the copyright holders in order to provide copies.

The Commissioner opined that the City may not deny public access to public government data on the basis that it does not own the copyright to the data. If the City maintains the data, it should provide a requester an opportunity to inspect it, but continue to require permission for copies.