1989 Wis. L. Rev. 1021 (1989)
Open Records Laws and Copyright; Kidwell, John A.

handle is hein.journals/wlr1989 and id is 1035 raw text is: ESSAY
OPEN RECORDS LAWS AND COPYRIGHT
JOHN A. KIDWELL*
Governments, at great expense, collect vast quantities of informa-
tion. The computer has transformed the cost, capacity and, perhaps,
inclination to exchange and manipulate such information. The result is
that information national, state and local governments find useful-or
essential-to collect is potentially available, and exploitable, by entre-
preneurs. Can state and local governments exploit the commercial
value of information they collect by claiming copyright in compilations
embodying it? Or, are such compilations effectively in the public do-
main by virtue of state open records laws? Serious arguments can be
raised on both sides of the question, and there is an almost astonishing
lack of authority to guide one to an answer.' The answer must turn in
any individual case on the idiosyncrasies of that particular state's stat-
ute, and so this Essay can only ask the question, and not answer it. In
nearly every case, it will be necessary to decide whether the state's law
was intended only to provide public access to information for the pur-
pose of making government more accountable, or whether it was also
intended to place potentially valuable works of intellectual property in
the public domain.
To set the stage, imagine that a state agency charged with adminis-
tering wildlife resources compiles a detailed wildlife database which
shows the distribution of fish and game throughout the state as well as
*   Professor of Law, University of Wisconsin Law School. The author wishes to thank
Gerry Thain, Tom Palay, and especially Warren Lehman, who commented on a draft of this
Essay.
1. Neither of the leading copyright treatises address the question. P. GOLDSTEIN, COPY-
RIGHT PRINCIPLES, LAW AND PRACTICE (1989); M. NIMMER, COPYRIGHT (1978). ALEXIS search of
state and federal cases using the search parameter Copyright w/50 (open record or public record
or freedom information) disclosed no cases on point though there were cases in support of the
proposition that third-party proprietary interests in works are not compromised when their works
became public records. See infra note 25. Most state supreme court opinions since the mid-1960s
are available on LEXIS and so my search would not have identified earlier cases. A similar search
of state attorney general opinions (LEXIS includes only those issued after 1977) was only slightly
more productive; most of the attorney general opinions dealt with claims that copyrighted works
were not subject to open records requests. A slightly narrower search of the 35 law reviews in the
LEXIS library provided no relevant citations. Given the limitations of this Essay, and the limited
nature of my search, I acknowledge that there may be articles which address the question which
escaped my attention.

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