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Minnesota
Copyright Status: Orange
Openness Score: -1.39
What is the law?
Binding, on-point law (about)
None
Advisory sources (about)
A Minnesota attorney general opinion interprets the Minnesota Government Data Practices Act (MGDPA), the state public records law, as requiring public disclosure of records, but not prohibiting a state-held copyright from limiting the subsequent use of disclosed records. [1] The opinion acknowledges, however, that "[i]t is, of course, ultimately the legislature's role and responsibility to make or change policy in this area," and after citing policy reasons that may argue against copyright protection, concludes with the statement that "we certainly encourage the legislature to consider these issues carefully." Minn. Op. Att'y Gen. 852 (1995).
Related law (about)
Minnesota law exempts from public access records transferred to the state archives which "[are] proprietary information, including computer programs and software and other types of information manufactured or marketed by persons under exclusive legal right, owned by the agency or entrusted to it." Minn. Stat. Ann. § 138.17 subd. 1c(a)(3).
Public records law (about)
Minnesota has recognized a public right of access to public records since at least the 1940s. See Op. Atty Gen. (Minn.) file 851-I, June 18, 1943, cited in Harold L. Cross, The People's Right to Know: Legal Access to Public Records and Proceedings, (1953), at 117. The current law is the Minnesota Government Data Practices Act (MGDPA), which can be found at Minn. Stat. Ann. § 13.01. The laws says that "[a]ll government data collected, created, received, maintained or disseminated by a government entity shall be public." Minn. Stat. Ann. § 13.03.
The MGDPA mentions copyright only in the context of government-created software. Of software, the statute says, "[a] government entity may enforce a copyright or acquire a patent for a computer software program or components of a program created by that government entity without statutory authority." Minn. Stat. § 13.03 subd. 5. [2]
Does the public records law restrict the use of disclosed records?
The purpose is generally irrelevant to a records request. Op.Atty.Gen. 373b-18(b), March 8, 1967. However, if the request "involves any person's receipt of copies of public government data that has commercial value… the responsible authority may charge a reasonable fee for the information in addition to the costs of making and certifying the copies." Minn. Stat. Ann. § 13.03 subd. 3(d).
In addition, the Information Policy Analysis Division of the Minnesota Department of Administration is empowered to issue advisory opinions related to the MGDPA. Minn. Stat. Ann. § 13.072 subd.1. This division provides general guidance on their website which covers the interaction of the MGDPA with federal copyright law. Additionally, several of these opinions address the copyrightability of Minnesota records: advisory opinions 94-057 ("unless clearly specified by the legislature, the public's right of access to and use of public government data cannot be curtailed by a government entity's claim of intellectual property rights in those data." This, however, is superseded by AG opinion 852, discussed above); advisory opinion 96-032 (addressing a copyright held by a third party); advisory opinion 00-006 (government entity may control the use of but not access to copyrighted material); advisory opinion 00-042 (inspection, but not copying, allowed for a copyrighted video); advisory opinion 02-012 (inspection, but not copying, allowed for third-party copyrighted building plans); advisory opinion 08-009 (inspection, but not copying, allowed for third-party copyrighted book).
Specifics and examples (about)
Status | Applies to... | Based on? |
---|---|---|
Copyrightable by statute | "computer software program[s] or components of a program created by [a] government entity" | Minn. Stat. § 13.03 Subd. 5 |
Copyrightable by statute | Published volumes of reports of the Minnesota Supreme Court [3] | Minn. Stat. § 480.11 subd. 3 |
Copyrightable by statute | Published compilations and supplements to state code [4] | Minn. Stat. Ann. § 14.47 subd. 1(5) |
Public domain by statute | Healthcare data collected under the Data Collection and Research Initiatives | Minn. Stat. Ann. § 62J.301 subd. 2(a)(4) |
Copyright asserted by county | Databases and electronic data compilations licensed by the County of Houston, MN | http://www.co.houston.mn.us/Documents/Recorder/Contract_LS.pdf |
Additional things to consider (about)
The Minnesota attorney general may replevin public records which have been improperly removed from government custody. Minn. Stat. Ann. § 138.226.
The Minnesota Historical Society, which is the official administrator of the state archives under Minn. Stat. Ann. § 138.161, generally asserts a copyright interest in its collections. See also http://www.mnhs.org/copyright.
Where else to go
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Information Policy Analysis Division advisory opinions, available at http://www.ipad.state.mn.us/docs/opinionmain.html.
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Information Policy Analysis Division, copyright information, available at http://www.ipad.state.mn.us/docs/copyright.html.
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Minnesota Historical Society, available at http://www.mnhs.org/.
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Margaret Westin, The Minnesota Government Data Practices Act: A Practitioner's Guide and Observations on Access to Government Information, 22 Wm. Mitchell L. Rev. 839 (1996).
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Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Minnesota, available at http://www.rcfp.org/rcfp/orders/docs/ogg/MN.pdf.
Bibliography
Statutes
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Minn. Stat. Ann. § 138.17, available at https://www.revisor.mn.gov/statutes/?id=138.17.
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Minn. Stat. Ann. § 13.01, available at https://www.revisor.mn.gov/statutes/?id=13.01.
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Minn. Stat. § 13.03, available at https://www.revisor.mn.gov/statutes/?id=13.03.
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Minn. Stat. Ann. § 13.072, available at https://www.revisor.mn.gov/statutes/?id=13.072.
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Minn. Stat. § 480.11, available at https://www.revisor.mn.gov/statutes/?id=480.11.
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Minn. Stat. § 14.47, available at https://www.revisor.mn.gov/statutes/?id=14.47.
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Minn. Stat. Ann. § 62J.301, available at https://www.revisor.mn.gov/statutes/?id=62j.301.
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Minn. Stat. Ann. § 138.226, available at https://www.revisor.mn.gov/statutes/?id=138&view=chapter#stat.138.226.
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Minn. Stat. Ann. § 138.161, available at https://www.revisor.mn.gov/statutes/?id=138&view=chapter#stat.138.161.
Attorney General Opinions
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Minn. Op. Att'y Gen. 852 (1995), available at http://www.ag.state.mn.us/office/Opinions/852-19951204.pdf.
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Op.Atty.Gen. 373b-18(b), March 8, 1967.
Information Policy Analysis Division Opinions
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Advisory Opinion 94-057, available at http://www.ipad.state.mn.us/opinions/1994/94057.html.
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Advisory Opinion 96-032, available at http://www.ipad.state.mn.us/opinions/1996/96032.html.
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Advisory Opinion 00-006, available at http://www.ipad.state.mn.us/opinions/2000/00006.html.
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Advisory Opinion 00-042, available at http://www.ipad.state.mn.us/opinions/2000/00042.html.
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Advisory Opinion 02-012, available at http://www.ipad.state.mn.us/opinions/2002/02012.html.
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Advisory Opinion 08-009, available at http://www.ipad.state.mn.us/opinions/2008/08009.html.
Other
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Information Policy Analysis Division, copyright information, available at http://www.ipad.state.mn.us/docs/copyright.html.
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Enhanced Remote Access Agreement, Houston County, MN, available at http://www.co.houston.mn.us/Documents/Recorder/Contract_LS.pdf.
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Minnesota Historical Society, MNHS Copyright and Use Information, available at http://www.mnhs.org/copyright.
Footnotes
- [1] This interpretation of a state public records law is also applied in the New York case, County of Suffolk, New York v. First Am. Real Estate Solutions. This can be contrasted with the similarity of the MGDPA's provision regarding software copyrights (see Public records law above) discussed in California's contrary case, County of Santa Clara v. Superior Court.
- [2] The specification that a copyright may be acquired in this instance "without statutory authority" may be interpreted by a court to mean that other government copyrights would only be permissible with a statutory grant of authority. See California, County of Santa Clara v. Superior Court.
- [3] 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). Minn. Stat. § 480.11 subd. 3 must, therefore, only apply to the materials added to the reports by the reporter or publisher, and not to the judicial decisions themselves.
- [4] 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).