Citation Numbers: 76 Op. Att'y Gen. 162
Judges: DONALD J. HANAWAY, Attorney General
Filed Date: 7/6/1987
Status: Precedential
Modified Date: 7/6/2016
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
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, TheCopyright Law 43 (5th ed. 1979). Statutes and judicial opinions are deemed to be within *Page 163
the public domain and are, therefore, not copyrightable by either individuals or states. State of Ga., Etc. v. Harrison Co.,
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
Since Wisconsin's public records law, section
(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 *Page 164 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. I am, of course, not expressing an opinion on whether the registration will be accepted.
DJH:GSW *Page 165