In Zove v. Whitemarsh Township, AP 2019-0739 (June 14, 2019), the Requester sought to inspect and obtain copies of documents, plans and memos relating to a preliminary development plan. The Township partially granted the request, but informed requester that she could only inspect copyrighted records. On appeal, the Township submitted an affidavit confirming that the preliminary plan set, stormwater plans and plans within the soils and foundation subsurface investigation contained copyright marks.
The Copyright Act precludes the reproduction of any copyrighted works without the consent of the copyright holder. See 17 U.S.C. §§ 106, 501. Section 106 of the Copyright Act vests in the owner of the copyright the exclusive right to duplicate and to authorize duplication of the copyrighted work. It does not, however, restrict inspection.
In Ali v. Philadelphia City Planning Commission, 125 A.3d 92, 102 (Pa. Cmmw. 2015), the Commonwealth Court held that the Copyright Act is not a federal law that exempts copyrighted material from disclosure under the RTKL (Section 305(a)(3) of the RTKL) nor is it a federal law that renders such materials “nonpublic” (Section 306 of the RTKL). Instead, it “limits the level of access to a public record only with respect to duplication, not inspection.” Accordingly, Section 3101.1 of the RTKL, which provides that if “the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply” to copyrighted records.
The first step in the analysis is to determine if the Copyright Act applies. In Zove, the records at issue were marked with the copyright symbol and it was uncontested that the plans were covered by the Copyright Act. However, the Copyright Act protects all original works of authorship that are fixed in a tangible form of expression, including pictorial, graphic and sculptural works and architectural works...
