B.C. Government Claims Copyright in FOI Records

Michael Geist points the way to an interesting Vancouver Sun article, reporting on the B.C. provincial government's inclusion of copyright notices in packets of documents turned over to journalists under B.C.'s Freedom of Information and Privacy Protection Act, a Canadian analog of our state FOI laws. Stanley Tromp, writing for the Sun, explains:

Soon afterward, I was perplexed to receive "notices" slipped inside packages of documents mailed to me in response to some of my FOI requests. These letters warned me that: "These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works is forbidden."

If I wanted to redistribute even a portion of these records, I would have to send a special request (which could be denied) to the IPP, and also pay up. The implicit threat that I could be sued for non-compliance was clear.

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

After several years of this process, I complained to B.C.'s information and privacy commissioner, David Loukidelis, an inquiry was begun, and a ruling is expected.

I agree with Tromp that it is "deeply troubling" that a government would invoke its intellectual property rights to limit permissible uses of information made available to the public under a legislative regime designed to promote transparency and accountability in, as well as open debate about, the inner workings of government.

This is an area where U.S. copyright law compares (somewhat) favorably with some other copyright regimes around the world. Section 105 of the U.S. Copyright Act makes works of the federal government ineligible for copyright protection. In contrast, Candada, Australia, New Zealand, and the UK assert what is known as "crown copyright" in government works.

By its terms, however, Section 105 does not apply to works of state governments. U.S. states therefore theoretically could claim copyright in government-prepared works released under state FOI laws. Copyright protection for factual works is extremely "thin," however, and many government records would likely have little original expression, making it hard for the government to make out its case.  Of course, the accuracy of this characterization would depend on the kind of government document in question. The standard of copyright originality is low, and certainly some government documents contain a good deal of original expression. Fortunately, the issue has never come up, at least as far as I know. I suspect that there would be strong public outcry in the United States if a state government were to do what B.C. is doing.

A side note: some U.S. cases suggest that state statutes and court decisions are not eligible for copyright protection. See, e.g., Banks v. Manchester, 128 U.S. 244 (1888); Georgia v. Harrison Co., 548 F. Supp. 110 (N.D. Ga. 1982), vacated by agreement between the parties, 559 F. supp. 37 (N.D. Ga. 1983). But the reasoning of these cases does not necessarily extend to other government records -- copyright could apply to everyday works of authorship prepared by employees of state governments. As the Nimmer treatise points out, however: "The question remains whether, under circumstances seeking to impede public access to materials of legitimate interest, enforcement of state government copyrights might violate the First or Fourteenth Amendment." 1-5 Nimmer on Copyright § 5.14 (2008). Now that would be an interesting case!