Case Information
*1 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 *2 (~+307)
Honorable James E. Nugent - PageTwo 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