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US federal copyright law trumps state Freedom of Information Act

Pictometry International Corp., a leader in geo-referenced aerial image capture and visual-centric data analytics, recently prevailed in a precedent-setting unanimous decision issued by the Connecticut Supreme Court addressing the interaction of federal copyright protection, trade secrets, and the Connecticut Freedom of Information Act. See Pictometry International Corporation v. Freedom of Information Commission, 307 Conn. 648, ___ A2d ___, 2012 Conn. LEXIS 5 (2013).  The case has ramifications for all copyright holders licensing intellectual property to government agencies.

This case is the first in the nation to examine the interplay between a citizen’s right to copy or obtain a copy of public records and the limitations placed upon such rights by federal copyright law.  Issues of first impression include: (1) whether Connecticut’s Freedom of Information Act (FOIA) is preempted by the Copyright Act to the extent that FOIA permits the copying and distribution of copyrighted materials without the permission of the copyright owner, and (2) even if preemption applies, whether the “fair use” doctrine may be used to override the copyright owner’s rights under the Copyright act and to permit the copying and distribution of copyrighted materials without the permission of the copyright owner.   

As a result of this case, copyright holders (at least those in Connecticut) may now license their intellectual property to governmental agencies secure in the knowledge that their copyrighted materials are exempt from the public’s right to copy or obtain copies of such materials under the state’s FOIA.  The case also makes clear that neither the agency empowered to oversee the implementation of the state’s FOIA nor a state court may consider whether the “fair use” doctrine can be used to override the protections afforded under the Copyright Act.   Lastly, the Connecticut decision makes clear that a state agency is not required to bear extraordinary costs in providing information, but rather may pass its costs, including any license fees owing to the copyright owner, to the party requesting the information. Read more.

Dunlap Codding | Lexology | 4th March 2013

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