Main Content


Copyright Status: Light green

What is the law?

Binding, on-point law (about)

Virginia law specifies that copyrightable materials created by state employees within the scope of their employment are the intellectual property of the commonwealth. A statute mandates that the Secretary of Administration establish policies for the release of Commonwealth-owned copyrights, which must at a minimum authorize state agencies to release all potentially copyrightable materials under the Creative Commons or Open Source Initiative licensing system "as appropriate." VA Code Ann. § 2.2-2822.

Advisory sources (about)

Several Virginia attorney general opinions indicate that the state may hold copyrights. See 1981-82 Va. Rep. Att'y Gen. 443 (1982); 1981-82 Va. Rep. Att'y Gen. 321 (1982). Note that this is not inconsistent with the law quoted above, which allows the state to retain copyright in state documents, but requires that open licensing standards be met. The Virginia Freedom of Information Advisory Council [1] has indicated that "There are no exemptions [in the Freedom of Information Act] for copyright[ed] data" and that copyrighted records must be provided under the Virginia Freedom of Information Act. Virginia Freedom of Information Advisory Council, Opinion AO-20-00.

Public records law (about)

Virginia has had a limited common law right of access to government records since at least 1896. See Gleaves v. Terry, 93 Va. 491, 25 S.E. 552, 552 (1896). The current Virginia Freedom of Information Act was first enacted in 1968 and may be found at Va. Code Ann. § 2.2-3700. The Supreme Court of Virginia has held that the right of access to court records provided by Va. Code Ann. § 17.1-208 is the equivalent of a constitutional right of access. Daily Press, Inc. v. Com., 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013).

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

Virginia does not restrict records requests based on the purpose of the request or the intended use, including records requested for commercial use. Associated Tax Serv., Inc. v. Fitzpatrick, 236 Va. 181, 187, 372 S.E.2d 625, 629 (1988).

Specifics and examples (about)

Status Applies to... Based on?
Copyrightable by statute "Copyright interests of the Code publisher, which include case annotations, cross-reference notes, editor's notes, collateral reference notes and effect of amendment notes" for the Code of Virginia, the Virginia Administrative Code, and the Virginia Register of Regulations VA Code Ann. § 30-34.10:2
Copyright policies set by individual institutions Intellectual property of state universities and community colleges VA Code Ann. § 23-4.3

Additional things to consider (about)

The Virginia Freedom of Information Act restricts its guarantee of public records access to Virginia citizens. Va. Code Ann. § 2.2-3704. This citizens-only provision was recently challenged as unconstitutional, but was upheld by the U. S. Supreme Court. McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (2013). The Freedom of Information Advisory Council issued a statement after McBurney encouraging state agencies to respond to out-of-state as well as in-state requests, but advising that they need not be held to as stringent time standards. See Virginia Freedom of Information Advisory Council, Responding To Requests From Out-Of-State.

Virginia law identifies that public records are the "property of the Commonwealth" on several occasions: Va. Code Ann. § 2.2-2822 ("Patents, copyrights or materials that were potentially patentable or copyrightable developed by a state employee during working hours or within the scope of his employment or when using state-owned or state-controlled facilities shall be the property of the Commonwealth."); Middlesex Cnty. v. Hamilton, 28 Va. Cir. 283 (1992) ("Public records are the property of the state."), citing Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865, 881 (1874)).

Virginia law authorizes the seizure of records from persons not authorized to retain them. Va. Code Ann. § 42.1-90.

Where else to go




Attorney General Opinions

Freedom of Information Advisory Council opinions