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New Hampshire

Copyright Status: Light orange

What is the law?

Binding, on-point law (about)

N.H. Rev. Stat. Ann. § 21-R: 14 establishes an Open Government Data policy to the effect that government-generated data will not be copyrightable. The policy is voluntary and must be affirmatively adopted by individual state agencies.

Advisory sources (about)


N.H. Rev. Stat. Ann. § 5-C: 98 places restrictions on the copying of vital records, but notes that "[t]hese restrictions shall not apply to vital records in the public domain." A related statute, N.H. Rev. Stat. Ann. § 5-C:105, clarifies that "[b]irth records more than 100 years old and death, marriage, and divorce records more than 50 years old shall be considered part of the public domain." There may be some ambiguity in the use of the term "public domain" here. In contrast to the formal definition of "creative works that are not protected by intellectual-property," Black's Law Dictionary (9th ed. 2009), this instance, as well as some others in state law, may imply "not confidential" rather than "not proprietary." It is possible that what is meant here is that information in the records, being no longer confidential, is in the public domain. Ideas and facts, unlike the specific expressions of those ideas, cannot be copyrighted, see 1-2 Nimmer on Copyright § 2.02, and factual information contained in public records could therefore be said to be in the "public domain" once it is released to the public, while the records themselves, if sufficiently original to merit copyright protection, could still be copyrighted by the state. It is unclear in this instance precisely what is meant.

Public records law (about)

The New Hampshire constitution was amended in 1976 to include that "the public's right of access to governmental proceedings and records shall not be unreasonably restricted." N.H. Const. pt. 1, art. 8. This was codified in the New Hampshire Right to Know Law in 1967 at N.H. Rev. Stat. Ann. § 91-A:1 et seq., although some records had a statutory right of access as early as the 1942 New Hampshire code. Revised Laws of New Hampshire, 1942, chap. 59, section 56, cited in Harold L. Cross, The People's Right to Know: Legal Access to Public Records and Proceedings, (1953), at 55, fn. 36.

Does the public records law restrict the use of disclosed records?

For the majority of records, the purpose of the request and the intended use of the requestor are not restricted. See, e.g., Lamy v. New Hampshire Public Utilities Comm'n, 152N.H. 106 (2005); Union Leader Corp. v. City of Nashua, 141 N.H. 473 (1996); Mans v. Lebanon School Board (1972) 112 N.H. 160, 290 A.2d 866. Some data containing personal information on New Hampshire citizens, however, is restricted to research use only. N.H. Rev. Stat. Ann. § 91-A:10.

Specifics and examples (about)

Status Applies to... Based on?
Copyright status unclear State court reports N.H. Rev. Stat. Ann. § 505:9 ("The reporter shall publish the reports and provide for the sale thereof, and may dispose of the copyright as he shall deem expedient.")

Additional things to consider (about)

New Hampshire's Right to Know Law may limit access to citizens only, N.H. Rev. Stat. Ann. § 91-A:4 ("Every citizen … has the right to inspect all governmental records."), however "any person" may petition the court if denied access. N.H. Rev. Stat. Ann. § 91-A:7. It is unclear whether the New Hampshire right to know law refers to New Hampshire citizens or U.S. citizens. In either event, the constitutionality of a citizens-only public records law was recently upheld in in McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (U.S. 2013).

New Hampshire law states that "[a]ll records made or received by or under the authority of or coming into the custody, control, or possession of public officials of this state in the course of their public duties are the property of the state and shall not be mutilated, destroyed, transferred, removed, or otherwise damaged or disposed of, in whole or in part, except as provided by law." N.H. Rev. Stat. Ann. § 5:37.

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