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Copyright in Architectural Works: What You Need to Know

Frank said:
The Virginia Freedom of Information Act is very clear that construction documents submitted for building permits are public reacords available for copying with limited exceptions.§ 2.2-3700. Short title; policy.

A. This chapter may be cited as "The Virginia Freedom of Information Act."

B. By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

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"Public records" means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.

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§ 2.2-3704. Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc.

A. Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. The custodian may require the requester to provide his name and legal address. The custodian of such records shall take all necessary precautions for their preservation and safekeeping....
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Read my reply to peach.

No state government may nullify federal law. The State FOIA may not nullify the rights of any copyright holder.
 
Didn't I say I thought SBCCI lost at the Supreme level? Of course, when you order a code book from ICC, the shrink wrap has a notice that it's a copyrighted document and that by opening it, you agree to the copyright laws.

If you've ever worked in a building department, you will know you need to send them to the Clerk's office (which we always provided copies of the codes) to review.. if the customer wanted a page copied, it was at .10 a page.

I just had a conversation with a patent attorney regarding a code issue. He's ordering the applicable code BECAUSE he feels a judge may ask for the actual code to be entered as evidence.
 
Maybe de-privatizing the model code would be a start and eliminating the need of a private entity and that a public entity for code development would solve the copyright issue.
 
RickAstoria said:
Maybe de-privatizing the model code would be a start and eliminating the need of a private entity and that a public entity for code development would solve the copyright issue.
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Maybe of the code, but the tread is "Copyright in Architectural Works" not the Code works
 
California Health and Safety Code Section 19851 provides some provisions for copying plans and specifications heald by the building department even if the architect objects.
 
once it's in the public realm, anyone can read/copy everything in the permit records.. they can get copies.. what they do with the copies is between the copyright holder and the person doing something with it.. not the jurisdiction. Worked in a city once where the designer came in frequently to see our FOIA requests... if something belonged to her, she pursued them (not us).
 
then don't apply for a permit in VA... rules are different in CA, I guess.

Isn't FOIA a federal law???

It's not like a building department copies plans hilly-nilly... it's based on a FOIA request.
 
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peach said:
Isn't FOIA a federal law???
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The federal FOIA does not provide a right of access to records held by Congress, the courts, state or local government agencies, or by private businesses or individuals.

The federal FOIA does not provide a unlimited right of access to Copyrighted materials
 
cool... that makes things alot easier... so who exactly, does it apply to? sounds like nobody.
 
like .... what governmental agency isn't federal, state or local.

Publishing for re-sale or reuse is one thing. Already checked with a patent attorney here.

AND since the plans are supposed to be on site, what prevents someone from drawing the basic floor plan and elevation from those plans?
 
It does not preclude all federal governmental agencies only "...records held by Congress, the courts...."

You are overthinking this
 
Mark said:
The federal FOIA does not provide a right of access to records held by Congress, the courts, state or local government agencies, or by private businesses or individuals.
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Got a cite for that?

Mark said:
The federal FOIA does not provide a unlimited right of access to Copyrighted materials
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True, for national security, trade secrets and some other items. I think the Federal question would be whether or not plans contained "trade secrets". As far as California H&S Code §19851 is concerned, I think this is one of many conflicts between Federal and state law, this may be coming up, since the Federal government is challenging Arizona's immigration law as usurping Federal authority, there are those now demanding that they do the same thing on California's gay marriage law.

I don't think that any government agency has any right to enforce any individual's civil right to copyright protection, that is and should be a private right of action.
 
thanks conarb... good insight.

good luck with your designs Mark...
 
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funny you would post a federal link.. from the copyright office (which does include patents, medical trade secrets, etc).
 
Peach is right. Virginia's FOIA law says:

§ 2.2-3704. Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc.

A. Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. The custodian may require the requester to provide his name and legal address. The custodian of such records shall take all necessary precautions for their preservation and safekeeping.

The full law is at: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000

State FOIA laws may allow citizens to make copies of architectural plans, but federal copyright laws would prohibit somebody form using or selling the plans they copied.
 
Federal law lists 9 exemptions and 3 exclusions, the USDHRSA does a good job of listing them. Note Exemption #3:

Exemption 3: Information Exempt Under Other Laws

The third exemption incorporates into the FOIA other laws that restrict the availability of information. To qualify under this exemption, a statute must require that matters be withheld from the public in such a manner as to leave no discretion to the agency. Alternatively, the statute must establish particular criteria for withholding or refer to particular types of matters to be withheld.
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It appears that California's H&S §19851 is an attempt to qualify under Exemption 3, undoubtedly something put in there by AIA lobbyists, the question is whether it would stand up to constitutional scrutiny, off hand I'd say no, transparency in government trumps all such protectionist legislation, but what do I know, I agree with the 5th Circuit that once a code is adopted into statute or ordinance it has entered the public domain, but the Supremes won't address that issue for fear of overturning the apple cart, so they may want to leave these overarching copyright laws stand as well, they stay well clear of zoning issues knowing full-well that if they ever really address them they'll throw them out nationwide.
 
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