S.C. Counties Can Copyright, License Public Documents

It does not violate freedom-of-information law for a public entity to copyright and license specially created documents and to restrict subsequent commercial use, the South Carolina Supreme Court has ruled.

The court found no conflict between copyright law and the state law requiring access to public documents.

A licensing fee, however, cannot frustrate the purpose of the public access law, the court said.

Plaintiff George H. Seago III challenged Horry County's requirement that he pay a $125 fee for copies of sophisticated digital photographic maps the county created.

Seago, owner of Real Estate Information Service Inc., put the maps on his Web site, where he sold them to developers, mortgage companies and attorneys for fees ranging from $300 to $3,000.

Seago historically had been given access to the documents and paid a copying fee, but in 2002 the county passed an ordinance initiating the licensing fee.

The county also required people requesting the maps to sign licensing agreements acknowledging the county's copyright in the information and restricting any further commercial use of the maps without prior written consent.

Seago refused to sign the agreement and filed suit in the Horry County Circuit Court.

He said the county's charges exceed the cost of making copies, the restrictions on the use of the documents was unlawful and there was no exception under the state freedom-of-information law for records containing copyrightable elements.

The court concluded that Horry County could copyright its materials and that the copyright protections could be harmonized with the freedom-of-information law.

The right to access public documents was separate and distinct from any right to subsequent distribution, the court said, and the county could impose a licensing fee in excess of the cost of reproducing the data.

Seago appealed to the South Carolina Supreme Court, which said counties can obtain copyrights, and maps can be copyright-protected so long as they demonstrate the requisite originality and creativity.

The county must provide access to the public information but can restrict subsequent commercial use in order to protect the copyright, the court said.

On the record before it, the high court could not decide whether the county could charge licensing fees that would exceed the actual cost of copying the documents.

The freedom-of-information law requires copying fees to be charged at the lowest possible rate to requesting parties.

The court said limitations on the fee structure for providing copies of public records are applicable only for those copies that are provided in keeping with the spirit of the law; the law does not control fees for subsequent commercial distribution of copyright-protected documents for profit.

The licensing fee charged by the county exceeded actual copying costs, but there was no evidence in the record as to what those costs would be in non-licensing situations, according to the court.

The high court remanded the case for a determination of the copying costs and whether the licensing fee charged was so out of line that it frustrated the intent of the freedom-of-information law.

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Seago is represented by Jay Bender and Holly Palmer Beeson of Baker, Ravenel & Bender in Columbia, S.C.Horry County is represented by Emma Ruth Brittain and Matthew R. Magee of Thompson & Henry in Myrtle Beach, S.C.