In the Matter of a Request
 for Advisory Opinion


     Advisory Opinion   #62

Town Attorney, Town of Tolland, Applicant





On January 16, 1985, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Town Attorney, Town of Tolland.


In his letter of request, the applicant states that from time to time copyrighted building blueprints and plans are filed in the office of the town's building official. He notes that such blueprints and plans would be public records under the Freedom of Information Act and therefore subject to its copying provisions. Although the applicant does not say so explicitly, the Commission assumes that these documents are filed with the building official in compliance with the requirements of state and local building laws.


In essence, the applicant seeks the commission's opinion as to whether these copyrighted blueprints and plans are exempt from the Freedom of Information Act's copying provisions and, if not, whether the copying of such documents by the town's building official would constitute a copyright infringement.


In relevant part, Conn. Gen. Stat.1‑19(a) states:


Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to ... receive a copy of such records in accordance with the provisions of section 1‑15.


The Commission is unaware of any state statute that specifically exempts copyrighted material from the disclosure provisions of the Freedom of Information Act when such material is given to public agencies pursuant to the requirements of state or local law. It therefore remains to be determined whether such material is exempt by virtue of superseding federal law.


Under the federal common law of copyright, the filing of building plans in a public office constitutes a dedication to the public, terminating the author's copyright in the plans. DeSilva Construction Corp. v. Herrald, 213 F. Supp. 184, 194 (1962). This is true even in the case where such filing is required by statute or ordinance because the filing is tantamount to a publication of those plans. Id.


On the other hand, a federal copyright statute, 17 U.S.C. 106, generally confers exclusive rights upon the owner of the copyright. These rights include, among other things, the right to authorize or to withhold the reproduction of the copyrighted work. Infringing on the exclusive domain of the copyright owner under 106 would render the person requesting the copies, and possibly also the town official providing the copies, liable for copyright law violation. While the Copyright Act of 1976, 17 U.S.C. 101 et seg., does not make anyone specifically liable for infringement committed by another, Sony Corp. of America v. Universal City Studios, 104 S. Ct. 774 (1984), the applicable statute does not preclude responsibility for contributory infringement. Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). This means that the town officials who copied the documents could be held responsible for contributing to the infringement committed by the person to whom the documents were released.


There are, however, certain exceptions to the exclusive rights of copyright holders under 106. For example, 17 U.S.C. 107, the codification of the so called "fair use doctrine." limits the exclusive rights defined in 106. An equitable rule of reason, fair use was traditionally defined as "a privilege in other than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent." H. Ball, Law of Copyright and Literary Property 260 (1944).


107 contains four factors to be considered in determining fair use, including (1) the purpose and character of the use; (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; and (4) the effect of the use upon the potential market for or value of the copyrighted work. When Congress codified the doctrine, it simply incorporated the above list of factors "to be considered." No particular weight was assigned to any one of these, and the list was not intended to be exclusive. Sony at 785. Each case raising the question must be decided on its own facts.


It is therefore the Commission's opinion that architectural blueprints and plans that are properly copyrighted under federal statute are generally exempt from the copying provisions of the Freedom of Information Act under the superseding authority of 17 U.S.C. 106. In some cases, however, the fair use doctrine, as codified in 17 U.S.C. 107, may permit the copying of such records without constituting an infringement. In this regard, the degree of permissible copying rests in the extent of the use intended by the person receiving the copies. Thus, for example, reproduction for the purposes of safety inspections, education, legislative or judicial proceedings or news reporting could all be interpreted as permissible under 107.





                                                                                            By Order of the Freedom of
                                                                                            Information Commission


                                                                                            Judith A. Lahey, Chairman of
                                                                                            of the Freedom of Information

Date ___________________



Mary Jo Jolicoeur
Clerk of the Commission