About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1989 Wis. L. Rev. 1021 (1989)
Open Records Laws and Copyright

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. 1021

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most