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What is the law?

Binding, on-point law (about)


Advisory sources (about)

Several Wisconsin attorney general opinions have declared that the state may copyright the works of state employees in the name of the state. See 1987 WL 341123 (Wis. A.G. July 6, 1987); 36 Op. Att'y Gen. 356, 357 (1947).

In an unpublished opinion [1], a Wisconsin court rejected the argument that the state public records law placed government documents into the public domain, but did not address the issue at any depth. See the cases in Florida, New York, California, and South Carolina to see how other states have approached this argument. State v. Law Office Info. Sys., Inc., 230 Wis. 2d 185, 603 N.W.2d 748 (Wis. Ct. App. 1999). In another case, Assessment Technologies of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 644 (7th Cir. 2003), the court held that data compiled by the government through proprietary software was not copyrightable, however the holding was based on the lack of originality in the underlying data, rather than legal status of government records.

Public records law (about)

Wisconsin first enacted a public records law in 1849. See Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Wisconsin, at 1. The current Open Records Law may be found at Wis. Stat. Ann. § 19.31.

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

The Open Records Law provides that "no request . . . may be refused because the person making the request is unwilling . . . to state the purpose of the request." Wis. Stat. § 19.35(1)(i). This applies even when the requestor seeks to use the records for commercial purposes. See Op.Atty.Gen., July 16, 1969; Matter of Estates of Zimmer (App. 1989) 442 N.W.2d 578, 151 Wis.2d 122. The requestor's motivation may be considered, however, if the records request is disputed and a balancing test is employed by the judge. Hempel v. City of Baraboo, 2005 WI 120 ¶ 66, 284 Wis. 2d 162, 599 N.W.2d 551, 568.

The Open Records Law exempts copyrighted documents from disclosure, but does not specify whether the state government can itself hold copyrights. Wis. Stat. Ann. § 19.32(2); but see, Zellner v. Cedarburg Sch. Dist., 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240 (holding that third-party copyrighted material could be disclosed to news media under the fair use doctrine).

Specifics and examples (about)

Status Applies to... Based on?
Copyrightable by statute Intellectual property of the Educational Communications Board Wis. Stat. Ann. § 39.115
Copyrightable by statute Intellectual property of the Wisconsin Aerospace Authority Wis. Stat. Ann. § 114.62
Copyrightable by statute Intellectual property of the public schools of a city of the 1st class Wis. Stat. Ann. § 119.18
Copyright asserted by department "All web pages and other files on the Wisconsin Department of Public Instruction (DPI) website" Wisconsin Department of Public Instruction, Copyright - DPI Website Use and Disclaimer
Copyright asserted by board "field notes and plat maps of the original Public Land Survey of Wisconsin" Wisconsin Board of Commissioners of Public Lands, Copyright

Additional things to consider (about)

Wisconsin law states that "All public records made or received by or in the custody of a state agency shall be and remain the property of the state. Those public records may not be disposed of without the written approval of the board." Wis. Stat. Ann. §16.61.

Where else to go




Attorney General Opinions