HomeMy WebLinkAbout1997 12 18 Advisory Legal Opinion - Records, Architectural Plans under Seal.pdfPage I ot ~
Advisory Legal Opinion
Number: AGO 9'7-84
Date: December 18, J997
Subject: Record'.•, architectuntl plan,;: under seal; copyright
Mr. Donald L. Bell
General Counsel
Department of State
The Capitol
Tallahassee, Florida 32399-0250
RE: RECORDS--architectural and engineer plans under seal
filed with public agency subject to disclosure; duties
relating to copyrighted materials.
Dear Mr. Bell:
You ask substantially the following questions:
1. Are architectural and engineering plans under seal
pursuant to section 481.221 or section 471.025, Florida
Statutes, that are he~d by a public agency in connection
with the transaction of official business, subject to
inspection and copying under section 119.07{1), Florida
Statutes?
2. What are the responsibilities of a custodian of public
records, who pursuant to law, receives documents that may
be copyrighted under federal law?
In sum:
1. Architectural and engineering plans under seal pursuant
to section 481.221 or section 471.025, Florida Statutes,
that are held by a public agency in connection with the
transaction of official business are subject to inspection
and copying under section 119.07(1), Florida Statutes.
2. Custodians of public records should advise those seeking
to make copies of public records that may be copyrighted of
the penalties of violating the federal law.
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Question One
Florida's Public Records Law, Chapter 119, Florida
Statutes, requires that records which are made or received
in connec t.Lon with the transaction of official business by
any "agency" must be open for inspection in the absence of
a statute exempting such records or making the records
confidential. [1] You ask whether the placing of a seal on
architec~ural plans or engineering plans in accordance with
the provisions of Chapter 481 or 471, Florida Statutes,
removes such plan from the disclosure requirements of the
public Records Law.
Chapter 471, Florida Statutes, regulating the practice of
engineering, was enacted in the interest of public health
and safety. [2] Section 471.003(1), Florida Statutes,
prohibits any person other than a duly registered engineer
from practicing engineering or using "the name or title of
'registered engineer' or any other title, designation,
words, letters, abbreviations, or device tending to
indicate that such person holds an active registration as
an engineer in this state." Section 471.025 (1), Florida
Statutes, requires that all final drawings, specifications,
plans, reports, or documents prepared by a licensed
engineer to be filed for public record must be signed by an
engineer, dated, and stamped with the required seal: "Such
signature, date, and seal shall be evidence of the
authenticity of that to which they are affixed."
The Legislature has similarly determined it to be in the
public interest to regulate the practice of architecture,
stating in section 481.201, Florida Statutes:
liThe Legislature finds that the practice of architecture is
a learned profession. The primary legislative purpose for
enacting this part is to ensure that every architect
practicing in this state meets minimum requirements for
safe practice. It is the legislative intent that architects
who fall below minimum competency or who otherwise present
a danger to the public shall be prohibited from practicing
in this stat.a."
Section 481.223(1), Florida Statutes, prohibits a person
from practicing architecture unless the person is an
architect or registered architect and from using the name
or title "architect" or "registered architect," or words to
that effect, if the person is not licensed under Chapter
481, Florida Statues. Like section 471.025, Florida
Statutes, for engineers, section 481.221(1) (a), Florida
Statutes, provides:
Page J 01 ~
"Each registered architect shall obtain an impression-type
metal seal, and all final construction documents and
instruments of service which include drawings, plans,
specifications, or reports prepared or issued by the
registered architect and being filed for public record
shall bear the signature and seal of the registered
architect who prepared or approved the document and the
date on which they were sealed. The signature, date, and
seal shall be evidence of the authenticity of that to which
they are affixed." (e.s.)
The requirement of sealing in section 471.025(1), Florida
Statutes, for engineers and in section 481.221(1) (a),
Florida Statutes, for architects thus appears to relate the
state's regulation of these professions and an intent to
ensure the authenticity of these documents. Thus, the seals
establish the identity and professional status of the
person producing the plan rather than creating a property
interest.
I am not aware of, nor have you brought to this office's
attention, any Florida judicial decision recognizing that
the sealing of such documents by engineers and architects
creates 0 protected property interest similar to
copyrighting under federal law. In fact, the federal
copyright act has to a large extent preempted the state's
authority to create a copyright property interest. [3]
Section 301(a) of Title 17, United States Code, provides:
"On and after January 1, 1978, all legal or equitable
rights that are equivalent to any of the exclusive rights
within the general scope of copyright as specified by
section 106 in works of authorship that are fixed in a
tangible medium of expression and come within the subject
matter of copyright as specified by sections 102 and 103,
whether created before or after that date and whether
published or unpublished, are governed exclusively by this
title. Thereafter, no person is entitled to any such right
or equivalent right in any such work under the common law
or statut.es of any State." [4]
Accordingly, I am of the opinion that the placement of an
architect's or engineer's seal on architectural and
engineering plans under seal pursuant to section 4B1.221 or
section 471.025, Florida Statutes, respectively, does not
remove such plans from public inspection and copying under
section 119.07(1), Florida Statutes, when they are held by
a public agency in connection with the transaction of
official business.
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Question Two
The federal copyright 1aw vests in the owner of a
copyright, subject to certain limitations, the exclusive
right to do or to authorize, among other things, the
reproduction of the copyrighted work in copies and the
distriLution of the copyrighted work to the public by sale
or other transfer of ownership. [5] The unauthorized
reproduction of copyrighted work constitutes an
infring~ent of such copyright. Copyright infringement is a
tort and all persons involved are jointly and severally
liable as joint tortfeasors. [6]
Where a federal statute such as the copyright 1aw expressly
preempts a field and operates to bar specified acts or
conduct, the Supremacy Clause of the United States
Constitution provides that the federal law wi1l prevail and
exclusively control such matters. [7] Consequently, the
state is prohibited from enacting or enforcing any state
law or regulation which conflicts or interferes with,
curtails, or impairs, the operation of the federal law.
HoweveI, eVen if a record is copyrighted, federal law
permi ts (.~opying under certain conditions. For example,
notwithstanding the exclusive rights of the copyright
owner, 'i the fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by any
other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. "[8]
Moreover, even though federal law provides that a state is
not immune from suit for copyright infringement, [9] the
United States Supreme Court in Seminole Tribe of Florida v.
Florida, [10J concluded that Congress lacks authority in
exercising its Article I powers to abrogate a state's
sovereign immunity under Eleventh Amendment, stating:
[I] t has not been widely thought that the federal
antitrust, bankruptcy, or copyright statutes abrogated the
States' sovereign immunity. This Court never has awarded
relief against a State under any of those statutory
schemes . . Although the copyright and bankruptcy laws
have existed practically since our nation's inception, and
the antitrust laws have been in force for over a century,
there is no established tradition in the lower federal
courts of allowing enforcement of those federal statutes
against the States. II
II
In addition, the fact that the material may be copyrighted
does not preclude the material from constituting a public
record. For example, this office concluded in Attorney
General Opinion 90-102 that copyrighted data processing
software which was not specifically designed or created for
the county but was being used by the county in its official
capacity for official county business fell within the
definition of "public records" as being received by the
county in connection with the transaction of official
business by the county.
In State, Department of Health and Rehabilitative Services
v. Southpointe Pharmacy, [llJ the court rejected the
argument of the Department of Health and Rehabilitative
Services that a transcript of a hearing that had been
copyrighted by the court reporter and filed with the
department should not be copied without the copyright
holder's permission. The court stated that the department
with whom the transcript was filed was under a statutory
obligation to "preserve all testimony in the proceeding,
and, on the request of any party, . make a full or
partial transcript available."
Similarly, public agencies are required under the Public
Records l,aw to preserve those documents filed pursuant to
law with such agencies and to release such documents for
inspection and copying.
In light of the above and until this issue is clarified, I
am of the opinion that records custodians may release for
inspection and copying architectural and engineering plans
that must be filed with the agency pursuant to law. Such
custodians, however, should advise individuals seeking to
copy such records of the limitations of the federal
copyright law and the consequences of violating its
provisions. [12J
Sincerely,
Robert A. Butterworth
Atto~ney General
RAB/tgk
[1] See, s. 119.07, Fla. Stat. And see, s. 119.011(1), Fla.
Stat. (1996 Supp.), defining "Pub.Ldc records"; and Shevin
v. Byron, Harl.ess, Schaffer, Reid and Associates, Inc., 379
So. 2d 633 (Fla. 1980).
[2] Section 471.001, Fla. Stat.
[3] See, Van Dusen v. Southeast First National Bank of
Miamj., 478 So. 2d 82 (Fl.a. 3d DCA 1985), stating that prior
to the effective date of the 1976 Federal Copyright Act,
there existed a dual system of copyright protection whereby
unpublished works enjoyed copyright protection under state
common (or statutory) law while published works enjoyed the
protection provided by the prevailing federal statute. The
1976 federal act, however, has, for the most part,
eliminated this dual form of copyright protection although
exemptions to the exclusivity of the federal act exist.
[4J Cf., 28 U.S.C. s. 1338(a) (the district courts shall
have original jurisdiction of any civil action arising
under any Act of Congress relating to patents, plant
variety protection, copyrights and trade-marks. Such
jurisdiction shall be exclusive of the courts of the states
in patent, plant variety protection and copyright cases) .
[5J SeE, 17 U.S.C. s. 106.
[6] See, 17 U.S.C. s. 50l(a) and (b) (anyone who violates
any of the exclusive rights of the copyright owner is an
infringer and the owner of the exclusive right under a
copyright is entitled to institute an action for
infringement). See also, Burwood Products Company v. Marsel
Mirror and Glass Products, Inc., 468 F.Supp. 1215 (N.D.
Ill. 1979) (Copyright infringement is properly classified
as a tort). And see, Gershwin Publishing Corporation v.
Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d
Cir. 1971) (test for contributory infringement is whether
"one who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing
conduct of another"); Casella v. Morris, 820 F.2d 362, 365
(11tb Cir. J,987); Sony Corporation of America v. Universal
City Studios, Inc., 464 U.S. 417, 437; 104 S.ct. 774, 786
(1984) (c;ontributory infringer is one who "was in a
position to control the use of copyrighted works by others
and had authorized the use without permission from the
copyright owner"); Screen Gems-Columbia Music, Inc. V.
Mark-Fi Records, Inc., 256 F.Supp. 399 (S.D.N.Y. 1966)
(standard of knowledge is objective: Know, or have reason
to know)
[7] See, Art. VI, cl. 2, U.S. Const. And see, 17 U.S.C. S.
Page 7 or ~
301.
[8] See, 17 U.S.C. s. 107, which states that in determining
whether the use made of a work in any particular case is a
fair use the factors to be considered shall include:
"(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work."
[9] 17 U.S.C. s . 511(a). And see, 17 U.S.C. s. SII(b) I
providing:
"In a sui t described in subsection (a) for a violation
described in that subsection, remedies (including remedies
both at law and in equity) are available for the violation
to the same extent as such remedies are available for such
a violation in a suit against any public or private entity
other than a State, instrumentality of a State, or officer
or employee of a State acting in his or her official
capa~ity. Such remedies include impounding and disposition
of infringing articles under section 503, actual damages
and profits and statutory damages under section 504, costs
and attorney's fees under section 505, and the remedies
provided in section 510."
[10] --U.S.--, 116 S.Ct. 1114, 1185 fn. 16 (1996). In
response to Justice Stevens dissent that the opinion
results in no remedy for state violations of those federal
statutes, the Court noted that an individual may obtain
injunctive relief under Ex Parte Young, 209 U.S. 123, 28
S.Ct. 441, 52 L.Ed. 714 (1908), in order to remedy a state
officer's ~ngoing violation of federal law.
The Eleventh Amendment bars suits not only against the
state itself, but also against a subdivision of the state
if the state remains "the real, substantial party in
interest." Edelman v. Jordan, 415 u.s. 651, 663, 94 S.Ct.
1347, 1355-56, 39 L.Ed.2d 662 (1974). Whether a particular
official is the legal equivalent of the state for Eleventh
Amendment purposes is generally a question of that state's
law. See, Garcia v. City of Chicago, Ill., 24 F.3d 966,
(7th Cir. 1994), certiorari denied, 115 S.Ct. 1313, 131
L.Ed.2d 194 (1995).
Page x ot x
[11] 636 So. 2d 1377, 1182-1183 (Fla. 1st DCA 1994).
Compare, Building Officials & Code Adm. v. Code Technology,
Inc., 628 F. 2d 730 (1st Cir. 1980) (federal copyright act
did not protect copyrighted model building code developed
and published by private organization, which also published
edition of state building code based substantially on the
model code, against loss of its copyright protection
through adoption of the model code as state law since such
action triggered application of doctrine that copyrighted
material to the extent embodied in the state regulation,
lost its copyright protection and became part of the public
domain), with Del Madera Properties v. Rhodes and Gardner,
Inc., 637 F. Supp. 262 (N.D. Cal. 1985) ("governmental
enactment" argument is unpersuasive as there is no basis
for a h01ding that the tentative map is an administrative
ruling, 1egislative enactment, or similar official document
and unlike the building code at issue in Code Techn010gy,
the map is not a self-executing ordinance but was merely
approved and was not transformed by this action into law).
[12] Cf., 17 U. s. c. e . 108 (f) (1), stating that nothing in
the section "shall be construed to impose liability for
copyright infringement upon a library or archives or its
emp10yees for the unsupervised use of reproducing equipment
10cated on its premises: Provided, That such equipment
displays a notice that the making of a copy may be subject
to the copy.right law[.]"
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