Wisconsin Attorney General Opinions

Opinion # OAG 38-87,

6 July 1987

Copyright; Natural Resources,
Department Of;

The Department of Natural Resources may
seek to obtain copyrights for publications
entitled "Walleye Waters," "Trout Waters,"
"Musky Waters" and "Canoe Waters" which were
written and compiled by state employes on
state time provided the copyrights have not
been invalidated due to the omission
of the copyright notice.

CARROLL D. BESADNY,
Secretary Department of Natural Resources

You have requested my opinion as to whether
the Department of Natural Resources may
copyright various documents or publications
which have been written or compiled by
state employes on state time.

You state: "This issue has arisen by virtue
of requests by private enterprises who want
to reprint or reproduce four DNR publications
("Walleye Waters", "Trout Waters", "Musky
Waters", and "Canoe Waters") for sale to
the public. By copyrighting the publications,
the Department would be able to regulate
or prohibit their sale."

It is my opinion that the Department of
Natural Resources may acquire copyrights
in the above-mentioned publications provided
they are still valid under the provisions of
17 U.S.C. Section 405.

Under the Federal Copyright Act,
17 U.S.C. Section 105, copyright protection
"is not available for any work of the United
States Government," but there is no
similar provision relating to
state governments.

The statute relating to copyrights,
17 U.S.C. Section 102, is not
restricted to private parties
and there is no reason to
imply such restriction.

It would appear, in fact, that the opposite
inference is justified since only one
governmental entity, the United States
government, is specifically excluded
from the protection afforded by the act.

This is consistent with
36 Op. Att'y Gen. 356, 357 (1947) which
concluded that "a state may acquire a
copyright on the works of its employes."

The extent to which a state may obtain
copyright protection, however, depends on
state law and policy and is "subject to
exceptions dictated by public policy
with respect to such publications
as statutes and judicial opinions."

Latman, The Copyright Law 43 (5th ed. 1979).
Statutes and judicial opinions are deemed to
be within the public domain and are,
therefore, not copyrightable by
either individuals or states.

76 OAG 162 163 164 165

State of Ga., Etc. v. Harrison Co.,

548 F. Supp. 110 (N.D. Ga. 1982).

It would appear that state administrative
codes are also within the public domain
and exempt from copyright protection.

Bldg. Officials & Code Adm. v. Code Tech.
628 F.2d 730 (1st Cir. 1980).

Having reviewed the publications referred to
in your opinion request, I am of the opinion
they are not of the nature of statutes and
judicial opinions and are not in the
public domain.

Thus, such publications would appear to
qualify for copyright protection under
17 U.S.C. Section 102, provided copyrighting
the publications would not be inconsistent
with any state law or policy.

Since Wisconsin's public records law, Section
19.32(2), Stats., defines "record" so as not
to include "materials to which access is
limited by copyright, patent or bequest,"
there would appear to be no state law or
policy which would prohibit your
department from acquiring copyrights
in the above-mentioned publications.

There is, however, a requirement that a
notice of copyright appear on all "publicly
distributed copies" of any such publications.

17 U.S.C. Section 401.

Under 17 U.S.C. Section 405, the omission of
notice will invalidate the copyright unless
at least one of three conditions is met:

(1) the notice has been omitted from no more
    than a relatively small number of copies
    or phonorecords distributed to the
    public; or

(2) registration for the work has been made
    before or is made within five years
    after the publication without notice,
    and a reasonable effort is made to add
    notice to all copies or phonorecords
    that are distributed to the public in
    the United States after the omission has
    been discovered; or

(3) the notice has been omitted in violation
    of an express requirement in writing
    that, as a condition of the copyright
    owner's authorization of the public
    distribution of copies or phonorecords,
    they bear the prescribed notice.

Obviously, the department cannot meet
either condition (1) or (3).

It also appears unlikely that the department
will be able to meet condition number (2)
since the publications have been
distributed to the public for a
considerable period of time.

If that period is more than five years,
the department no longer has a valid
copyright interest.

If any of the publications have been
distributed for a period less than five
years, and your department still desires
a copyright, you should add the proper
copyright notice to the publications and
attempt to register the works with the
Register of Copyrights as soon as possible.

76 OAG 162 163 164 165

I am, of course, not expressing an opinion on
whether the registration will be accepted.

DJH:GSW

76 OAG 162 163 164 165