Copyright and Consultant Exhibits

Copyright/Mapping ExampleToday another question came up in our ongoing discussions about copyright and government. So I thought I'd post the scenario and question and see how others viewed this. It seems that many counties, at least in Illinois, arrange for the production of aerials and the creation of data such as parcel information, roadway and water features, and other infrastructure. They then allow other governmental agencies to use this information. Often this permission is granted through agreements. Sometimes it is offered for free and sometimes at an annual cost. 

While much of this information is used by other governmental agencies like cities on a daily basis as the foundation for their GIS, occasionally a city might share this information with an outside consultant for the purpose of having exhibits or reports prepared. This is allowed through their agreement with the county because the use is for the purposes allowed in the agreement. However, if the governmental agency chooses not to include an ownership clause allowing them to retain all rights to the work created by the consultant, the company preparing the exhibits or reports will often attach a lengthy copyright and license document indicating the exhibit or report is covered under a copyright claimed by them. So the governmental agency cannot use the exhibit or report in any way that lies outside the uses specified under the consultant's copyright.

The question is, does the consultant have the right to copyright work they created using copyrighted material that they themselves had been granted no direct agreement or permission to use from the original owner of the work? Another but similar question is what if the city had paid a consultant to create an exhibit and included in the agreement a statement that allowed them to take ownership of the copyright upon final payment. So now the city owns the copyright to that exhibit. Let's say for some reason, the city wants to use that exhibit as a foundation for another exhibit, and they hire another consultant to create it. They do not release their original copyright, but do allow the consultant to use the exhibit to create a new one for them. However in this case they do not include any language retaining ownership of the final product. Does the consultant have the legal right to copyright the new exhibit when they have not been given permission to do anything other than modify the original work for their client? If I am the consultant, is all that I own in the  map above the work below?

Copyright/Mapping Example 2

I don't think too many people have addressed these two questions because it has really only become an issue with the increased use of digital tools. And I believe most people, myself included, had thought all government documents are in the public domain. However, we cannot assume this – by law, only federal documents are in the public domain. States and cities do have the right to copyright their work unless they have passed laws that state otherwise. And we all know you don't have to indicate a copyright – in the U.S. it is automatically created when you create a work. I'd be very interested in hearing any opinions, policies, or how governmental agencies and consultants are handling this issue.

(Note: the actual underlying map used in the example above is in the public domain, but the questions should be considered as if it was copyrighted and given to me to be used to create an exhibit for a proposed well location.)


4 Replies to “Copyright and Consultant Exhibits”

  1. I subscribe heavily to the "information wants to be free" mantra and am therefore, by my own admission, quite biased, but I fail to see how copyright is necessary at all here. I'm not sure whom or what the protections of copyright law are actually protecting in these situations, and it seems that they would only impede the efficient exchange of valuable information, which, above all, is intended to benefit the public.

    I realize that I'm dragging ideology into this when that was't your point in bringing up this discussion, but I guess I'm just puzzled as to why the discussion has to exist at all. It strikes me as a distortion of a set of laws intended for a very different purpose that can only serve as a distraction for the public officials and technical minds involved.

  2. Vinnie – I think it is totally appropriate for you to bring up those points. I too have wondered how in the world government works can be copyrighted and believe we really should require the laws to be changed to clarify that all government works from all levels are in the public domain. Unfortunately we are saddled with a law that didn’t anticipate today’s digitial environment and fails to ensure without question that these works are in the public domain.

    So the reason the discussion is coming up more often is because of this law, some cities and states are openly claiming copyright. But even if they don’t openly state it, their works appear to still be copyrighted by law. I am just not sure a state or city has actually exercised their rights by suing someone. Yet for those of us who want to use these government resources, we could be risking a lawsuit if an agency made the choice to protect their copyright. Maybe people feel it is a low risk so that is why they still use the works as if they are in the public domain.

    But the other reason the question comes up is that even if the agency doesn’t sue over the use of their works, the agency might find that a private entity took their works and is now claiming their own copyright to them. So as government agencies we are handed back works with copyrights and long legal statements saying we can’t open the documents unless we agree to those terms yet those works are based on other copyrighted material the company had no rights to modify and then copyright as their own. So is the company’s claim and legal terms even valid? It ends up a complicated legal mess that really doesn’t need to even be an issue if, as you indicate, government works are clearly defined as being in the public domain. 

  3. Thank you for indulging my mild rant. The cynic in me would say that the system only exists as it does so that lawyers can profit.

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