Section 105 of title 17 USC prohibits copyright in works of the United States government, but does not bar works of state and local governments. Under case law, state court decisions and statutes have been held not protectible, but the rationales for these decisions do not apply to other material, like maps. Of course, states may decide as a matter of state law that given material may not be subject to copyright (a decision akin to abandonment), and states may pass FOIA or similar laws that severely circumscribe the exercise of copyright. But the question of originality of state authored material is governed by federal copyright law.
A number of disputes have arisen over tax assessment maps. Living in a city that has gone through a real estate re-evaluation last year and is undergoing a second re-evaluation this year, I have become personally familiar with these works and the data contained in them. In County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001), at issue (variously) was whether a county could, under federal copyright law and as a matter of state law, assert copyright in official tax maps. In finding no bar under state FOIA law, the court of appeals inquired into whether the county required the incentive of copyright to create the maps. The court of appeals indicated that if on remand it was found that the existence and content of the maps “are purely dictated by law, it is likely that Suffolk County needed no additional incentive to create them.” On the other hand, “[m]any works of government … due to their expense, may require additional incentives in order to justify their creation.” Given the fact-specific nature of such inquiries, the court declined to “declare a general rule that works by state governmental authors are automatically in the public domain from their inception.”
The decision to rest on an inquiry into incentives is surprising and has not been taken in other areas. Personal letters, for example, hardly need the incentive of copyright to be written, yet they have been protected by the Second Circuit without such an inquiry. A more traditional ground is that set forth in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 363 (1991): “We note in passing that the selection featured in Rural's white pages may also fail the originality requirement for another reason. Feist points out that Rural did not ‘select’ to publish the names and telephone numbers of its subscribers; rather, it was required to do so by the Kansas Corporation Commission as part of its monopoly franchise. See 737 F. Supp. at 612. Accordingly, one could plausibly conclude that this selection was dictated by state law, not by Rural.”
Thus, if the content is dictated by state law, the grounds for exercising originality don’t exist. The issue of copying of local tax assessment maps is to addressed on Friday, February 8th, in all of all places, state court in a hearing on a motion for a preliminary injunction brought by a country tax assessor in Kanawha County Tax Assessor. The injunction is sought against Seneca Technologies, which is being defended by Paul Alan Levy and Greg Beck of Public Citizen Litigation Group. (HT to Paul). Information about the litigation can see found at this link.
In short, Seneca brought a successful state FOIA action to obtain a copy of tax maps in electronic form. It then posted the maps on its website (link here). Rather than appeal the judge’s decision, the tax assessor brought a separate suit for unauthorized copying under state law and for an injunction against further copying. As Paul and Greg have pointed out in their brief, the suit is clearly preempted: the idea of a state court issuing an injunction against copying a map is ludicrous, but is also raises important issues about the dissemination of important public information. It’s a case worth following and I imagine the Public Citizen website will have updates about it.
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Well, I think the court has the right idea, looking at incentives, but it's really more of a policy issue. The better questions for this suit would seem to be grounded in due process and fair use, in my opinion.
Still -- Copyright is meant to serve the public interest by causing the creation and publication of works that otherwise would not have been created, and having as little as possible copyright for as short a time as possible. If a work would have been created and published anyway, then it is inappropriate for it to be copyrightable, since that would incur a cost to the public with no benefit. There is of course no other valid reason to have copyright.
We can weed out some of these works:
Sometimes, we can tell whether or not an author deserves copyrights. Government works -- whether works of the US government, or any other foreign or domestic governmental entity or IGO -- should not be copyrightable because governments never need the incentive of copyright. Any legitimate government would not spend tax dollars creating copyrighted works, and would only create works to serve their people anyway; illegitimate governments, or governments that are acting improperly need not apply. Frankly, I have no idea what the court here was thinking of when it supposed that sometimes incentives would be needed.
Sometimes classes of work can be eliminated. Architectural works don't need copyrights since whether they're created and 'published' or not hinges entirely on a number of extrinsic factors. Whether we're talking about skyscrapers or tract housing, I totally doubt that anyone would not have created and erected a work but for copyright. Mere plans, as we all know, can fall under pictorial/graphic/sculptural works.
But the main way to weed out works that don't need, and thus shouldn't get, copyrights, is to allow the authors of those works to tell us. After all, they are in the best position to know whether or not copyright was a factor.
Formalities are the mechanism for determining this. Make copyright essentially contingent on registration with deposit. (There might be some lesser protection for unpublished manuscripts which are intended to eventually be published, so as to deter infringements in that narrow area, but if someone never intends to publish, protection wouldn't be appropriate) Then have very short terms, so that the author has to frequently renew; say, every 1-5 years.
In this way, authors that are incentivized by copyright will identify themselves with regard to their works they were incentivized to create, by registering. If they were incentivized by the maximum length of the copyright with all the renewals, they'll renew.
Authors who don't care won't bother to do the (rather simple and inexpensive) paperwork, and their works will enter the public domain. This is either immediately, or when they stop bothering to renew.
This is probably one of the single most important reforms we need to make to the system. This automatic copyright crap was a huge mistake. I'm upset that we didn't learn this from watching the Berne members for so long. Well, we've learned it now.
I am pleased to announce that the plaintiff in this case has come to her senses and agreed to cancel the hearing on the motion for a preliminary injunction, thus leaving Seneca’s web site – with its freely available maps – in place. Although she is not (yet) dismissing her lawsuit, the tax assessor and her counsel are to be commended for their willingness to take a second look at their lawsuit and to think about whether there are means other than seeking a prior restraint against the posting of FOIA’d documents to accomplish objectives that they consider legitimate.
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