Chapter §13.3 Copyright

• Jurisdiction: Washington

§13.3 COPYRIGHT

An agency might hold records that are copyrighted or are otherwise the intellectual property of a third party. In Lindberg v. Kitsap County, 133 Wn.2d 729, 948 P.2d 805 (1997), the requestors asked for copies of copyrighted engineering drawings prepared by a private engineering company that had been submitted to Kitsap County as part of a plat application process. The requestors asked for these documents to prepare for comments and criticisms in public hearings and for appeals on proposed residential development in Kitsap County. Although the county allowed the requestors to see the documents, it would not let the requestors copy them, contending that they could not allow copying because the documents had been copyrighted under federal copyright law. The court found that allowing a requestor in this case to copy copyrighted materials that are public records would constitute a fair use under 17 U.S.C. § 107. Id. at 747. The court explained:

The "fair use" doctrine is an equitable rule of reason and each case must be decided on its facts. A court must consider the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the potential market for or the value of the copyrighted work. The scope of the doctrine is wider when the use relates to issues of public concern. The public benefit resulting from the particular use of copyrighted work need not necessarily be direct or tangible, but may arise because the challenged use serves a public interest. The copyrighted work used for such purposes as criticism, news reporting, teaching, scholarship, or research are given more latitude.

Id. at 744.

The Lindberg court did not resolve an issue raised by Kitsap County, which contended it could not determine whether a request would...