Copyright law does not prohibit copying of public records

WASHINGTON–In mid-July, the state Court of Appeals in Tacoma ruled that federal copyright law does not prohibit the reproduction of public records in response to a request under the Public Records Act.

The Kitsap County Department of Public Development had refused Evelyn and Richard Lindberg’s request to photocopy the site and drainage plans of proposed residential developments that had been submitted to it, claiming that the Lindbergs’ request did not fall under the “fair use” exception of copyright law.

The trial court ruled in December 1993 that the Lindbergs were entitled to the documents for the purpose of “preparing for, and commenting on, the development proposals at the appropriate public hearings and appeals,” but awarded damages for the department’s noncompliance that were below the statutory minimum. Both parties appealed.

The Courts of Appeals agreed with and elaborated upon the lower court’s decision, noting that under the Public Records Act, the County has the burden of proving that a statute, such as the copyright law, prohibits disclosure under the Public Records Act.

Although copyright law grants certain exclusive rights in works to the copyright owners, it also allows for “fair use” by other parties, taking into account the nature of the work, the purpose and character of the use, the amount and substantiality of the work used, and the effect upon the market for the work.

The court of appeals observed that copying a work in its entirety is usually not a fair use. In this case, however, the documents were prepared for public comment and were voluminous, the court noted, and Lindberg, a experienced civil engineer, could not use the plans effectively if he could not bring copies with him to the proposed sites to be developed. In addition, the court ruled that this use was non-commercial and would not adversely affect the value or marketability of the documents. (Lindberg v. Kitsap County; Plaintiffs’ Counsel: pro se)