Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
March 18, 1981
MARK WHITE
Altorney General
Honorable James E. Nugent, Chairman Opinion No. MW-307
Railroad Commission of Texas
P. 0. Drawer 12967 Re: Whether the Railroad Com-
Austin, Texas 78711 mission must provide copies of
copyrighted maps requested
under the Open Records Act
Dear Mr. Poerner:
You inform us that the Railroad Commission has on file copyrighted
maps on which it indicates the locations of drilling activity and oil wells.
These maps are available for public inspection at your offices. You ssk
whether you must provide copies of such maps when requested to do so by a
member of the public.
The Open Records Act requires the custodian of public Information to
“produce such Information for inspection or duplication.” V.T.C.S. art.
6252-17a, S4. He is prohibited by the act from making any inquiry of a
person who seeks to inspect and copy public records beyond what is
necessary to establish identification and the records being requested.
Section 5(b).
In contrast, the copyright law gives the copyright holder the exclusive
right to reproduce his work, subject to another person’s right to make fair
use of it. 17 U.S.C. SS 106, 107 Q976). Any copying of such records must be
consistent with the copyright law. A state that infringes a copyright may be
liable in damages to the holder. Milk Music, Inc. v. Arizona, 591 F.2d 1278
(9th Cir. 1979).
Thus, the custodian of copyrighted records, when asked for a copy of
them under the Open Records Act, is faced with a difficult problem. He can
make the copy as a ministerial act and risk a suit for infringement. He can
seek to determine whether the proposed use is a fair use. This is a difficult
task at best, since it requries an lnquiy into the purpose of the use and its
effect on the potential market for the copyrighted work. It is rendered
impossible by the Open Records Act’s prohibition against making any such
inquiry of the requestor. Moreover, the supremacy clause of the United
States Constitution would prohibit the custodian from following the Open
Records Act where it conflicts with the copyright law. -See Antoine v.
Washington, 420 U.S. 194 (19751
P* 980
Honorable James E. Nugent - PageTwo (~+307)
The custodian of public records must comply with the copyright law and is not
requied to furnish copies of such records that are copyrighted. Members of the public
have the right to examine copyrighted materials held as public records and to make
copies of jnch records tmassisted by the state. Gf course, one so doing assumes the
risk of a copyright Infringement suit.
SUMMARY
The Railroad Commission is not required to furnish copies of
copyrighted maps to members of the public.
m@
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpln
P. 981