About Local Government Records
(© 2016, Gretchen McCord)*
Important Legal Notice
The Copyright Act does not address documents created by state or municipal governments. Copyright protection for these documents is a matter of state law. In California, the history of copyright protection for state and local government documents is quite murky, and the current status of such documents is both murky and contentious.
Do any California agencies own copyright in their works?
Some California codes, such as the Education Code, state relatively clearly that either the state generally or specific government agencies/entities (in some cases, including local agencies like school boards) may choose to claim copyright in works created by them. These agencies are listed below. However, the majority of state codes either do not address the matter at all or raise the issue but give no clear resolution.
What about agencies not mentioned in the statutes?
A 2015 California appellate court decision (County of Santa Clara v. Superior Court) held that a state agency may claim copyright in its works only if statutory law "affirmatively grants" the right to do so. Only a few agencies fall into this category. Nonetheless, various agencies not authorized under statutory law to claim copyright in their works continue to do so (look for copyright notices on individual works).
Furthermore, in recent years, the state has repeatedly made very clear its interest in broadly claiming copyright in state works. In 2000, and again 2011, at the request of the legislature, the state auditor conducted surveys regarding how all state agencies manage their intellectual property. Based on the reports of those audits, the auditor (and presumably the legislature) seem to assume that any state agency could claim copyright in at least some works. In early 2016, a bill proposed in the state Assembly would have specifically allowed the state to claim federal copyright protection for all eligible works created by state agencies. After great public outcry over potential chilling effects of the bill, the bill was amended to address only trademark rights and omit copyright.
What does this mean for the California Revealed project?
Based on the County of Santa Clara opinion noted above, it is reasonable to assume that agencies not statutorily authorized to claim copyright in their works cannot do so. But given the clear conflict between that holding and ongoing actions by the state, some participating libraries may prefer to take a conservative approach in certain cases (such as when an agency clearly claims copyright, even if not statutorily authorized to do so) and obtain permission. Finally, participating libraries should stay aware of further developments in this evolving situation.
Statutory Authorization to Claim Copyright
- Boards of education for counties, school districts, and community college districts
Food and Agricultural Code
- California Rice Commission
- California Nursery Producers Commission
- County Boards of Supervisors
- Computer software developed by any state or local agency
Health & Safety Code
- Department of Toxic Substances Control
- Air pollution control districts
- State Energy Resources Conservation and Development Commission
- Works prepared by other state entities for the California Health and Human Services Agency
- The Board of Fire Services claims copyright in "a complete series of promotional examinations" created by the State Fire Marshall