What is the law?
Binding, on-point law (about)
A Montana court recently heard arguments about the copyright status of Montana government documents. Billmayer v. City of Kalispell, 2007 MT 116, 337 Mont. 242, 247, 160 P.3d 869, 87. The court rejected an argument against disclosure based on copyright, but does not provide dispositive guidance because the copyright claim was otherwise flawed. No other binding, on-point law is available in Montana.
Advisory sources (about)
Public records law (about)
Montana first enacted the Public Records Law in 1895, and included the right to access public records in the state constitution in 1972. Mont. Const. art. II, § 9. The Public Records Act may be found at Mont. Code Ann. § 2-6-101.
Does the public records law restrict the use of disclosed records?
If a records request is disputed, then the courts use a balancing test to determine disclosure, and may consider the purpose of the request for that purpose. Engrav v. Cragun, 236 Mont. 260, 769 P.2d 1224 (1989). Additionally, Montana law prohibits the distribution of any lists of persons for use as a mailing list, except in certain circumstances. Mont. Code Ann. § 2-6-109.
Specifics and examples (about)
|Status||Applies to...||Based on?|
|Unclear||"Montana Code Annotated, supplements, or other publications ancillary thereto, as published" ||Mont. Code Ann. § 1-11-304 ("The Montana Code Annotated, supplements, or other publications ancillary thereto, as published, are the sole property of the state of Montana and may not be copyrighted.")|
|Copyright asserted by department||Photographs appearing on the Montana Fish, Wildlife, and Parks website||http://fwp.mt.gov/doingBusiness/contactUs/imageDisclaimer.html|
Additional things to consider (about)
Montana law is unclear on whether public records requests are restricted to Montana citizens. The public records law provides access to "every citizen" without specifying Montana citizens or United States citizens. Mont. Code Ann. § 2-6-102. In contrast, the Montana Constitution specifies that "No person shall be deprived of the right to examine documents." Mont. Const. art. II, § 9.
In addition to the ownership statement present in § 1-11-304, discussed above, several other statutes also refer to records as being the "property of the state": Mont. Code Ann. § 2-6-205 ("All public records are and shall remain the property of the state"); Mont. Code Ann. § 2-6-303 ("All official records remain the property of the state").
A policy statement provided by the Montana State Library, which is no longer available directly through their website, advised users that some state agencies may assert copyright.
Where else to go
Montana State Library, available at http://home.montanastatelibrary.org/.
Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Montana, available at http://www.rcfp.org/rcfp/orders/docs/ogg/MT.pdf.
Billmayer v. City of Kalispell, 2007 MT 116, 337 Mont. 242, 247, 160 P.3d 869, 87, available at https://scholar.google.com/scholar_case?case=5922181443466549769.
Engrav v. Cragun, 236 Mont. 260, 769 P.2d 1224 (1989), available at https://scholar.google.com/scholar_case?case=9880989148074501503.
Mont. Const. art. II, § 9, available at http://leg.mt.gov/bills/mca/CONSTITUTION/II/9.htm.
Mont. Code Ann. § 2-6-101, available at http://leg.mt.gov/bills/mca_toc/2_6.htm.
Mont. Code Ann. § 1-11-304, available at http://leg.mt.gov/bills/mca/1/11/1-11-304.htm.
Mont. Code Ann. § 2-6-102, available at http://leg.mt.gov/bills/mca/2/6/2-6-102.htm.
Mont. Code Ann. § 2-6-205, available at http://leg.mt.gov/bills/mca/2/6/2-6-205.htm.
Mont. Code Ann. § 2-6-303, available at http://leg.mt.gov/bills/mca/2/6/2-6-303.htm.
Montana Fish, Wildlife, and Parks website, Image Copyright and Use Information, available at http://fwp.mt.gov/doingBusiness/contactUs/imageDisclaimer.html.
Montana State Library, State Publications Usage Guidelines, available via the Internet Archive at http://wayback.archive-it.org/499/20140620160630/http://msl.mt.gov/for_state_employees/State_Publications/usagerights.asp.
-  The copyright status of these documents is particularly unclear because the authorizing statute says both that the specified documents are "the sole property of the state of Montana" and that they "may not be copyrighted." Whether this means they are in the public domain or only that they may not be copyrighted by an entity other than the state is unclear from the statutory language. It is likely that the latter reflects the drafters' true intent, given that conflicts between third-party publishers and states are not unknown. See Davidson v. Wheelock, 27 F. 61 (C.C.D. Minn. 1866). Several circuit decisions have affirmed that third-party materials do not lose copyright protection when they are incorporated into state law. See, e.g., Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516 (9th Cir. 1997) amended, 133 F.3d 1140 (9th Cir. 1998); CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994); Bldg. Officials & Code Adm. v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980). But see Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (holding that third-party written building codes lose copyright protection when they are adopted into law).