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Alabama
Copyright Status: Orange
Openness Score: -0.97
What is the law?
Binding, on-point law (about)
None
Advisory sources (about)
A 1998 Alabama Attorney General opinion, 251 Ala. Op. Att'y Gen. 35 (1998), indicated that a compilation of facts made by a state agency could be protected by copyright law, and that, if protected, the subsequent use of the records could be restricted by the state, but that it would still be subject to disclosure under the Alabama Public Records Law. Proprietary information owned by a third-party, on the other hand, need not be disclosed under the public records law. Ala. Op. Att'y Gen. No. 2001-137 (Mar. 30, 2001).
Public records law (about)
Alabama's Public Records Law, first enacted in 1923, begins with Ala. Code § 36-12-40. Prior to 1923, there was a common law right of access to public records dating to at least 1882. Brewer v. Watson, 71 Ala. 299, 46 Am. Rep. 318 (1882). See generally Harold L. Cross, The People's Right to Know: Legal Access to Public Records and Proceedings, 67 (1953); Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Alabama.
Does the public records law restrict the use of disclosed records?
Under the Public Records Law, a requestor may be required to show a legitimate interest in a record in order to justify disclosure. Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991). An intended commercial use of a record, however, is not a valid ground to deny a public records request. Walsh v. Barnes, 541 So. 2d 33, 35 (Ala. Civ. App. 1989).
Specifics and examples (about)
Status | Applies to... | Based on? |
---|---|---|
Copyrightable by statute | "each volume of the pamphlet acts of the Legislature" and "each volume of the [Alabama state] code" [1] | Ala. Code § 36-13-5 |
Copyright asserted by state agency | "State of Alabama Law Enforcement agency's graphics, logos and any other intellectual and/or digital imagery" | http://le.alabama.gov/copyright.aspx |
Copyright asserted by city | "all text, graphics, and other content" on the City of Prattville website | http://www.prattvilleal.gov/default/copyright-notice.html |
Copyright not available by statute | "any product, process, idea, concept or procedure subject to protection under a copyright, patent or trade secret law, which was developed, invented or discovered through the utilization of [Alabama Supercomputer Authority] supercomputer and associated resources" | Ala. Code § 41-10-398 (preventing the state authority and its employees from asserting copyright over material subject to a third-party copyright). |
Additional things to consider (about)
The Alabama Library Association appointed an Alabama State Publications Task Force which examined the copyright status of Alabama government documents. Without stating definitively whether Alabama government documents are copyrighted, the Task Force concluded that most distribution of government documents under the public records law falls under the fair use provision of federal copyright law. The Task Force urged that, "Alabama state departments and agencies should be encouraged to make state information as freely available and as accessible as possible, with an additional emphasis, if necessary, that this is information which has been created at public expense, and taxpayers should not be burdened with paying twice for this information."
Alabama is one of the few states to restrict public records requests to their own citizens. The Alabama public records law allows "[e]very citizen" a right to inspect and copy public documents. Ala. Code § 36-12-40. A similar citizens-only provision in the Virginia public records law was upheld by the U.S. Supreme Court in McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (U.S. 2013). It is not clear from the language of the statute whether "citizens" refers to citizens of Alabama or citizens of the United States.
Twice in the Alabama code specific records are referred to as "property of the state": Ala. Code § 33-10-13; Ala. Code § 36-14-13.
Where else to go
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Alabama Secretary of State, Government Records Inquiry System, available at http://www.sos.state.al.us/vb/inquiry/inquiry.aspx?area=Lands.
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Alabama Office of the Attorney General, available at http://www.ago.state.al.us/Default.aspx.
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Alabama State Archives, available at http://www.archives.state.al.us/.
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Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Alabama, available at http://www.rcfp.org/rcfp/orders/docs/ogg/AL.pdf.
Bibliography
Cases
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State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941).
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Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991), available at https://www.courtlistener.com/opinion/1099348/blankenship-v-city-of-hoover/.
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Walsh v. Barnes, 541 So. 2d 33, 35 (Ala. Civ. App. 1989), available at https://scholar.google.com/scholar_case?case=7989874220607474714.
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McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (U.S. 2013), available at https://scholar.google.com/scholar_case?case=2705296316682556891.
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Brewer v. Watson, 71 Ala. 299, 46 Am. Rep. 318 (1882).
Statutes
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Ala. Code § 36-12-40, available at http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/36-12-40.htm.
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Ala. Code § 36-13-5, available at http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/36-13-5.htm.
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Ala. Code § 41-10-398, available at http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/41-10-398.htm.
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Ala. Code § 36-12-40, available at http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/36-12-40.htm.
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Ala. Code § 33-10-13, available at http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/33-10-13.htm.
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Ala. Code § 36-14-13, available at http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/36-14-13.htm.
Attorney General Opinions
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251 Ala. Op. Att'y Gen. 35 (1998), available at http://www.ago.state.al.us/opinions/pdf/98-00157.pdf.
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Ala. Op. Att'y Gen. No. 2001-137 (Mar. 30, 2001), available at http://www.ago.state.al.us/opinions/pdf/2001-137.pdf.
Other
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State of Alabama Law Enforcement, copyright notice, available at http://le.alabama.gov/copyright.aspx.
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City of Prattville, copyright notice, available at http://www.prattvilleal.gov/default/copyright-notice.html.
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Report of The Alabama State Publications Task Force, commissioned by Alabama Library Association Government Documents Round Table and Alabama Public Library Service (2001), available at http://wikis.ala.org/godort/images/7/7c/ASPTFRept.pdf.
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Harold L. Cross, The People's Right to Know: Legal Access to Public Records and Proceedings, 67 (1953).
Footnotes
- [1] Judicial opinions cannot be copyrighted. The Supreme Court in Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888) invalidated an asserted copyright by a private publisher, an Ohio citizen, for copyright in the state court reports, holding that any content written by a judge cannot be copyrighted because "[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute." See also Nash v. Lathrop, 142 Mass. 29, 35, 6 N.E. 559, 560 (1886) and Wheaton v. Peters, 33 U.S. 591, 668, 8 L. Ed. 1055 (1834). Only materials ancillary to the court opinion such as the "title-page, table of cases, head notes, statements of facts, arguments of counsel, and index" may be copyrighted. Callaghan v. Myers, 128 U.S. 617, 649, 9 S. Ct. 177, 185, 32 L. Ed. 547 (1888). While the laws themselves may not be copyrighted, the compilation of the laws, if done with sufficient originality, and any ancillary annotations, commentary, or creative organization, may be copyrightable. See, e.g. Davidson v. Wheelock, 27 F. 61, 62 (C.C.D. Minn. 1866) ("such compilation may be so original as to entitle the author to a copyright on account of the skill and judgment displayed in the combination and analysis; but such compiler could obtain no copyright for the publication of the laws only; neither could the legislature confer any such exclusive privilege upon him."); but note that merely descriptive chapter headings are insufficient to merit protection. State of Ga., on Behalf of & for Benefit of Gen. Assembly of Ga., By & Through Code Revision Comm'n v. Harrison Co., 548 F. Supp. 110, 116 (N.D. Ga. 1982) vacated sub nom. State of Ga. on Behalf of Gen. Assembly of Georgia By & Through Code Revision Comm'n v. Harrison Co., 559 F. Supp. 37 (N.D. Ga. 1983). The Alabama statute must therefore be interpreted to apply only to the original, copyrightable additions of the compiler. Efforts on the part of open government initiatives such as that of Carl Malamud, have resulted in positive change in this area. See, e.g., Letter from Carl Malamud to the President of the Colorado Senate; see generally https://public.resource.org.