FOIA Update: OIP Guidance: Copyrighted Materials and the FOIA
Saturday, January 1, 1983
FOIA Update
Vol. IV, No. 4
1983
OIP Guidance
Copyrighted Materials and the FOIA
One of the most difficult business-related issues to arise under the Freedom of Information Act is the proper treatment of copyrighted materials that are maintained by federal agencies. Such materials can come into an agency's possession in a variety of ways, including under the conditions of federal grants, pursuant to federal regulatory requirements, and even through unsolicited submissions. The question of their protected status can arise in processing any FOIA access request which encompasses a copyrighted record, or even possibly in a "reverse" FOIA context in which an objection to disclosure is raised by a copyright holder. As neither the FOIA nor the Copyright Act expressly addresses whether agencies must disclose a copyrighted record within the scope of a FOIA request, the design and purposes of both statutes must be considered in resolving this question.
THE COPYRIGHT ACT OF 1976
The Copyright Act of 1976, 17 U.S.C. §§ 101,et seq., essentially grants the holder of a copyright an exclusive right to reproduce and distribute copies of his work. See 17 U.S.C. § 106. Under the Act as revised in 1976, this protection attaches automatically as soon as the work is "fixed" in any tangible medium; neither registration nor any type of designation or notice is necessary to trigger it. See 17 U.S.C. §§ 102, 405, 408. Thus, the potential for copyright protection exists in virtually every original work of authorship. Despite this sweeping grant of copyright entitlement, however, the revised Copyright Act specifically codifies the common law doctrine of "fair use," which permits the reproduction of copyrighted materials "for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research" without liability for infringement. 17 U.S.C. § 107.
THE COPYRIGHT ACT AND THE FOIA
Although at first glance it might appear that the Copyright Act and the FOIA do not even deal with the same thing, they do potentially conflict. The Copyright Act regulates only the reproduction and distribution of documents, not access to them; it even provides for full public inspection of any copyrighted work registered and deposited with the Copyright Office. See 17 U.S.C. § 705(b). Yet the FOIA specifically contemplates document reproduction as a means of effectuating public access, see 5 U.S.C. § 552(a)(4)(A), and plainly requires more than mere document inspection. See, e.g., Perry v. Block, 684 F.2d 121, 124 n.14 (D.C. Cir. 1982). Thus, federal agencies are in the difficult position of being subject to potentially conflicting legal obligations: compliance with the FOIA on the one hand, and noninfringement of the rights of copyright holders on the other. See Weisberg v. Department of Justice, 631 F.2d 824, 830 & n.39 (D.C. Cir. 1980).