Wisconsin Legislature: vol76-162

76 Op. Att'y Gen. 162, 162 (1987)

The Department of Natural Resources may seek to obtain copyrights for publications entitled "Walleye Waters," "Trout Waters," "Musky Waters" and "Canoe Waters" which were written and compiled by state employes on state time provided the copyrights have not been invalidated due to the omission of the copyright notice. OAG 38-87

July 6, 1987

76 Op. Att'y Gen. 162, 162 (1987)

Carroll D. Besadny

Secretary

Department of Natural Resources

76 Op. Att'y Gen. 162, 162 (1987)

You have requested my opinion as to whether the Department of Natural Resources may copyright various documents or publications which have been written or compiled by state employes on state time.

76 Op. Att'y Gen. 162, 162 (1987)

You state: "This issue has arisen by virtue of requests by private enterprises who want to reprint or reproduce four DNR publications ("Walleye Waters", "Trout Waters", "Musky Waters", and "Canoe Waters") for sale to the public. By copyrighting the publications, the Department would be able to regulate or prohibit their sale."

76 Op. Att'y Gen. 162, 162 (1987)

It is my opinion that the Department of Natural Resources may acquire copyrights in the above-mentioned publications provided they are still valid under the provisions of 17 U.S.C. 405. Under the Federal Copyright Act, 17 U.S.C. 105, copyright protection "is not available for any work of the United States Government," but there is no similar provision relating to state governments. The statute relating to copyrights, 17 U.S.C. 102, is not restricted to private parties and there is no reason to imply such restriction. It would appear, in fact, that the opposite inference is justified since only one governmental entity, the United States government, is specifically excluded from the protection afforded by the act. This is consistent with 36 Op. Att'y Gen. 356, 357 (1947) which concluded that "a state may acquire a copyright on the works of its employes."

76 Op. Att'y Gen. 162, 162-163 (1987)

The extent to which a state may obtain copyright protection, however, depends on state law and policy and is "subject to exceptions dictated by public policy with respect to such publications as statutes and judicial opinions." Latman,

The Copyright Law

43 (5th ed. 1979). Statutes and judicial opinions are deemed to be within the public domain and are, therefore, not copyrightable by either individuals or states.

State of Ga., Etc. v. Harrison Co.

, 548 F. Supp. 110 (N.D. Ga. 1982). It would appear that state administrative codes are also within the public domain and exempt from copyright protection.

Bldg. Officials & Code Adm. v. Code Tech. Inc.

, 628 F.2d 730 (1st Cir. 1980).

76 Op. Att'y Gen. 162, 163 (1987)

Having reviewed the publications referred to in your opinion request, I am of the opinion they are not of the nature of statutes and judicial opinions and are not in the public domain. Thus, such publications would appear to qualify for copyright protection under 17 U.S.C. 102, provided copyrighting the publications would not be inconsistent with any state law or policy.

76 Op. Att'y Gen. 162, 163 (1987)

Since Wisconsin's public records law, section 19.32(2), Stats., defines "record" so as not to include "materials to which access is limited by copyright, patent or bequest," there would appear to be no state law or policy which would prohibit your department from acquiring copyrights in the above-mentioned publications. There is, however, a requirement that a notice of copyright appear on all "publicly distributed copies" of any such publications. 17 U.S.C. 401. Under 17 U.S.C. 405, the omission of notice will invalidate the copyright unless at least one of three conditions is met:

76 Op. Att'y Gen. 162, 163 (1987)

(1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or

76 Op. Att'y Gen. 162, 163 (1987)

(2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or

76 Op. Att'y Gen. 162, 163 (1987)

(3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice.

76 Op. Att'y Gen. 162, 163-164 (1987)

Obviously, the department cannot meet either condition (1) or (3). It also appears unlikely that the department will be able to meet condition number (2) since the publications have been distributed to the public for a considerable period of time. If that period is more than five years, the department no longer has a valid copyright interest. If any of the publications have been distributed for a period less than five years, and your department still desires a copyright, you should add the proper copyright notice to the publications and attempt to register the works with the Register of Copyrights as soon as possible. I am, of course, not expressing an opinion on whether the registration will be accepted.

76 Op. Att'y Gen. 162, 164 (1987)

DJH:GSW
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