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<br />A Study 01 GIS fo, the Colo,ado Deoartment of Natu,al Resources <br /> <br />Oclobe, 9. 1992 <br /> <br />in aa:ordance with the applicable federal laW; except that this authorization shall not <br />restrict public access to or fair use of copyrighted materials and shall not apply to <br />writings which are merely lists or other compilations." <br /> <br />One very important provision of this new subsection is that the state's obtaining and <br />enforcing copyright protection for public records shall not restrict public access or fair use <br />of those records. That copyright protection should not be used by the state or any of its <br />subdivisions to limit public access to public records is self-evident, given the tenor of the <br />Public Records law. A custodian may not use copyright to defeat accountability. A <br />custodian may well use copyright to limit commen::ial redistribution of a licensed database. <br /> <br />The fair use aspect of this provision is an element of copyright law deserving some further <br />explanation. Fair use has been defined as "the privilege in others than the owner [of the <br />copyright] to use the copyrighted material in a reasonable manner without his consent, <br />notwithstanding the [copyright] monopoly granted to the owner." Rosemont Enters v. <br />Random House. Inc., 366 F. 2d 303, 306 (2d Cir. 1966), cert. denied, 385 U.S. 1009 <br />(1967). The determination of faimess of use depends on the purpose of the use and a <br />number of factors, the detail of which is omitted from this report. The key element of this <br />determination boils down to the commercial versus nonprofit nature of the use. <br />Commercial use creates a presumption of unfair exploitation while nonprofit, e.g., <br />libraries, journalism, teaching materials in schools, and similar use is presumptively under <br />the fair use umbrella. <br /> <br />Perhaps one way to approach general copyright issues which might effect a GIS, without <br />becoming overly involved in complexities, is to discuss the recent Supreme Court case <br />dealing with copyright of databases entitled Feist Publications v. Rural TeleDhone Service <br />C2., _ U.S. _, _ S.Ct. _, 113 L.Ed.2d 358 (1991). ftill involved a dispute <br />between the Rural Telephone Service Company, which printed and distributed both white <br />pages and yellow pages directories, and Feist Publications, a company which produced a <br />regional directory largely comprising material from local telephone directories. When Rural <br />Telephone Service refused to permit Feist to copy the information from its directory, Feist <br />did so anyway. <br /> <br />The Supreme Court sustained Feist's position, with no dissenting votes and with only one <br />judge not joining in the Court's opinion. The Court restated the long-standing principle <br />that mere facts may not be copyrighted, unless those facts are compiled iD some original or <br />unique fashion. The Court expanded on this by holding that simply alphabetizing names is <br />not a sufficiently origmal compilation of facts to merit copyright protection. The Court also <br />rejected the "sweat of the brow~' theory, which provided copyright protection for <br />compilations of facts on the basis of the effort expended by the person who collected the <br />facts. Feist. supra. at 113 L.Ed.2d 374. (This decision appears to have been considered <br />by the Colorado General Assembly when enacting the last phrase of the newly created CRS <br />24-72-203(4), which provides that neither the state nor any of its agencies, institutions, or <br />political subdivisions may copyright any writings which are merely lists or other <br />compilations offacts.) <br /> <br />., <br /> <br />. ~'. <br /> <br />431.7 <br /> <br />PlanG'aphics, Inc. <br /> <br />17 <br />