September 2, 2008



FROM:            Robert J. Freeman, Executive Director


            I have received your letter in which you wrote that the Town of Wales has copyrighted its entire website.  You have asked how a government body can “prevent citizens from copying information from the web site that is clearly public domain....”

            In this regard, the matter does not deal directly with the Freedom of Information Law.  However, I offer the following comments.

            First, an agency, such as a town, is not generally required to have or post records on a website.

            Second, although I am not an expert with respect to the Copyright Act, I believe that a key issue involves the use of records that are copyrighted.  With respect to the ability of a person to use an access law to assert the right to reproduce copyrighted materials, the issue has been considered by the U.S. Department of Justice with respect to those materials, and its analysis as it pertains to the federal Freedom of Information Act is, in our view, pertinent to the issue as it arises under the state Freedom of Information Law.

            The initial aspect of its review involved whether the exception to rights of access analogous to §87(2)(a) of the Freedom of Information Law requires that copyrighted materials be withheld.  The cited provision states that an agency may withhold records that are "specifically exempted from disclosure by state or federal statute."  Virtually the same language constitutes a basis for withholding in the federal Act [5 U.S.C. 552(b)(3)].  In the fall 1983 edition of FOIA Update, a publication of the Office of Information and Privacy at the U.S. Department of Justice, it was stated that:

"On its face, the Copyright Act simply cannot be considered a 'nondisclosure' statute, especially in light of its provision permitting full public inspection of registered copyrighted documents at the Copyright Office [see 17 U.S.C. 3705(b)]."

            Since copyrighted materials are available for inspection, we agree with the conclusion that records bearing a copyright could not be characterized as being "specifically exempted from"

            The next step of the analysis involves the Justice Department's consideration of the federal Act's exception (exemption 4) analogous to §87(2)(d) of the Freedom of Information Law in conjunction with 17 U.S.C. §107, which codifies the doctrine of "fair use".  Section 87(2)(d) permits an agency to withhold records that "are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise."  Under §107, copyrighted work may be reproduced "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" without infringement of the copyright.  Further, the provision describes the factors to be considered in determining whether a work may be reproduced for a fair use, including "the effect of the use upon the potential market for or value of the copyrighted work" [17 U.S.C. §107(4)].

            According to the Department of Justice, the most common basis for the assertion of the federal Act's "trade secret" exception involves "a showing of competitive harm," and in the context of a request for a copyrighted work, the exception may be invoked "whenever it is determined that the copyright holder's market for his work would be adversely affected by FOIA disclosure" (FOIA Update, supra).  As such, it was concluded that the trade secret exception:

"stands as a viable means of protecting commercially valuable copyrighted works where FOIA disclosure would have a substantial adverse effect on the copyright holder's potential market.  Such use of Exemption 4 is fully consonant with its broad purpose of protecting the commercial interests of those who submit information to government... Moreover, as has been suggested, where FOIA disclosure would have an adverse impact on 'the potential market for or value of [a] copyrighted work,' 17 U.S.C. §107(4), Exemption 4 and the Copyright Act actually embody virtually congruent protection, because such an adverse economic effect will almost always preclude a 'fair use' copyright defense...Thus, Exemption 4 should protect such materials in the same instances in which copyright infringement would be found" (id.).

            In my opinion, due to the similarities between the federal Freedom of Information Act and the New York Freedom of Information Law, the analysis by the Justice Department may properly be applied when making determinations regarding the reproduction of copyrighted materials maintained by entities of government in New York.  In sum, if reproduction of copyrighted material would "cause substantial injury to the competitive position of the subject enterprise," i.e., the holder of the copyright, in conjunction with §87(2)(d) of the Freedom of Information Law, it would appear that an agency could preclude reproduction of the work.

            I note, too, that reproduction of a minimal aspect of a copyrighted work generally involves a “fair use.”  When copyrighted materials are obtained for a fair use, I do not believe that there can be a limitation or restriction on their dissemination.

            In the context of the situation that you described, I do not believe that records posted on the Town’s website would, if reproduced, cause injury to the functions or duties of the Town.  If that is so, it is unlikely that the Town has the authority to limit or restrict the use or reproduction of records that it posts on its website.

            I hope that I have been of assistance.


cc: Town Board