                      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
Honorable James E. Nugent      - PageTwo   (~+307)




      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




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