Pennsylvania

What is the law?

Binding, on-point law (about)

In Pennsylvania, the Department of General Services has the authority "[t]o copyright, in the name of the Commonwealth, all publications of the Commonwealth, or of any department, board, or commission or officer thereof, including the State Reports, which under existing or future laws it shall be necessary to have copyrighted, and such other publications as the Secretary of Property and Supplies, with the approval of the Governor, shall deem it advisable to copyright." 71 Pa. Stat. Ann. § 636.

Advisory sources (about)

Several Pennsylvania Office of Open Records address the relationship between third-party copyrighted material and the state Right-to-Know Law (RTKL) and indicate that agencies may refuse to disclose public records under RTKL if the public record is copyrighted and the copyright holder does not consent to disclosure. E.g., IN THE MATTER OF GREGORY WALKAUSKAS, Complainant v. TOWN OF MCCANDLESS, Respondent, 2013 WL 4406425 (Pa.Off.Open Rec.), 4; IN THE MATTER OF JIHAD ALI, Complainant v. CITY OF PHILADELPHIA PLANNING COMMISSION, Respondent, 2013 WL 4048516 (Pa.Off.Open Rec.), 3. These cases, however, dealt with third-party copyrights; it remains unclear whether a document copyrighted by a state entity would be subject to RTKL disclosure.

Public records law (about)

Pennsylvania first enacted an Open Records Law in 1957. The current Right-to-Know Law (RTKL) is 65 Pa. Stat. Ann. § 67.101.

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

The RTKL provides that government entities "may not deny a requester access to a public record due to the intended use of the public record by the requester unless otherwise provided by law." E.g. 65 Pa. Stat. Ann. § 67.301. Pennsylvania law is particularly clear on this issue, stating it six times within the RTKL and explicitly prohibits any requirement that requestor's specify a purpose. 65 Pa. Stat. Ann. § 67.301; 65 Pa. Stat. Ann. § 67.302; 65 Pa. Stat. Ann. § 67.303; 65 Pa. Stat. Ann. § 67.304; 65 Pa. Stat. Ann. § 67.703; 65 Pa. Stat. Ann. § 67.1308. This applies to commercial as well as non-commercial uses. Hoffman v. Com., Pennsylvania Game Comm'n, 71 Pa. Cmwlth. 99, 455 A.2d 731 (1983).

Specifics and examples (about)

Status	Applies to...	Based on?
Copyrightable by statute	"Smull's Legislative Hand Book and Manual of the State of Pennsylvania"	46 Pa. Stat. Ann. § 92
Freely distributed	Pennsylvania Topographic and Geologic survey [1]	71 Pa. Stat. Ann. § 954, dating from 1919, states that "All publications of the survey or any part thereof shall be copyrighted by the Department of Internal Affairs in the name of the Commonwealth." Section 954.1(4), enacted in 1997, however, states that "In enacting this act, it is the intent of the General Assembly that publications of the topographic and geologic survey no longer be subject to a statutory copyright requirement and that such publications that have previously been copyrighted may be copied and distributed without permission of the Commonwealth," and section 954.3 states that "Any publication of the topographic and geologic survey or part thereof for which a copyright was registered or was in the process of being registered prior to the enactment of this act may be copied and distributed without permission or a license from the Commonwealth."

Additional things to consider (about)

The state of Pennsylvania requires RTKL requestors to be "a legal resident of the United States." 65 Pa. Stat. Ann. § 67.102.

Several places in the Pennsylvania code refer to records as "property of the commonwealth": 71 Pa. Stat. Ann. § 1352 ("All instruments, plans, books and records pertaining to the office shall be the property of the state"); 52 Pa. Stat. Ann. § 70-104 ("All instruments, plans, books and records pertaining to the office shall be the property of the Commonwealth").

Where else to go

Pennsylvania Department of General Services, Copyright Fact Sheet, available at http://www.portal.state.pa.us/portal/server.pt/community/hide_copyright_registration/2304.
Pennsylvania Office of Open Records, available at http://openrecords.state.pa.us/portal/server.pt/community/open_records/4434.
Nathanael Byerly, Esquire & J. Chadwick Schnee, Esquire, What Every Lawyer Needs to Know About the Right-to-Know Law, 83 Pa. B.A. Q. 116 (2012)
Pennsylvania Historical and Museum Commission, available at http://www.portal.state.pa.us/portal/server.pt/community/state_archives/2887.
Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Pennsylvania, available at http://www.rcfp.org/rcfp/orders/docs/ogg/PA.pdf.
Ashley Messenger, Dennis Pitman, Can States Use Copyright to Restrict the Use of Public Records?, Comm. Law., February 2013, at 4, 5.

Bibliography

Cases

Hoffman v. Com., Pennsylvania Game Comm'n, 71 Pa. Cmwlth. 99, 455 A.2d 731 (1983), available at http://www.leagle.com/decision/198317071PaCommw99_1147.xml/HOFFMAN%20v.%20PA.%20GAME%20COMM.

Statutes

The current Right-to-Know Law (RTKL) is 65 Pa. Stat. Ann. § 67.101. All RTKL provisions are available at http://www.openrecords.pa.gov/Additional-Resources/Documents/pa_righttoknowlaw.pdf.

71 Pa. Stat. Ann. § 636.
65 Pa. Stat. Ann. § 67.101.
65 Pa. Stat. Ann. § 67.301.
65 Pa. Stat. Ann. § 67.302.
65 Pa. Stat. Ann. § 67.303.
65 Pa. Stat. Ann. § 67.304.
65 Pa. Stat. Ann. § 67.703.
65 Pa. Stat. Ann. § 67.1308.
46 Pa. Stat. Ann. § 92.
71 Pa. Stat. Ann. § 954.
71 Pa. Stat. Ann. § 954.1.
71 Pa. Stat. Ann. § 954.3.
65 Pa. Stat. Ann. § 67.102.
71 Pa. Stat. Ann. § 1352.
52 Pa. Stat. Ann. § 70-104.

Office of Open Records Opinions

IN THE MATTER OF GREGORY WALKAUSKAS, Complainant v. TOWN OF MCCANDLESS, Respondent, 2013 WL 4406425 (Pa.Off.Open Rec.).

IN THE MATTER OF JIHAD ALI, Complainant v. CITY OF PHILADELPHIA PLANNING COMMISSION, Respondent, 2013 WL 4048516 (Pa.Off.Open Rec.).

Footnotes

[1] Most recent litigation touching on the copyright status of state documents has concerned GIS data (see, e.g., the cases in Florida (Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004)), California (County of Santa Clara v. Superior Court, 89 Cal. Rptr. 374 (Cal. Ct. App. 2009)), New York (City of New York v. Geodata Plus, LLC, 537 F. Supp. 2d 443 (E.D.N.Y. 2007)), and South Carolina (Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008))). For a general discussion of the copyright status of government GIS data, see Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelles 1, 5 (2010).