You Can Look… But You Can Not Copy!
In my practice, I routinely handle multi-million dollar land development projects for my clients. A land use attorney works very hard to build their reputation and develop their brand, so when big money is on the line in the fast paced world of high-end multifaceted and multimillion dollar land development projects, don’t waste that effort, ensure your architectural plans information are protected and your work product information is secure!
Pennsylvania’s Right to Know Law (RTKL) has served as a prime example of the General Assembly’s staunch dedication to preserving transparent democracy and protecting the public’s rights by requiring all governmental agencies, including local municipalities, such as townships and boroughs, to retain and make available for inspection and duplication all public records. However, that effort can put developers at risk by devaluing their work product information.
While the RTKL may seem like a straightforward mandate and document retention policy, there are nuances in the law that must be navigated in order to ensure that your work product is protected in those instances where the plans you are required to file with an agency suddenly become public records. The Pennsylvania Supreme Court has emphasized that the RTKL presumes all records in possession of a local agency are public records and are therefore accessible for inspection and duplication by the public upon request unless the record is exempt under the statute; exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or protected by a privilege.
Potential issues becomes very clear with respect to architectural plans. When a plan is filed it becomes a public record and subject to inspection and duplication under the RTKL. One way for architects and planners to protect their work product is by obtaining a registered copyright. Though registration is not required in order to obtain some copyright protections, registration establishes prima facie evidence of protection and is required in order to obtain statutory damages.
Just last year, the Commonwealth Court heard a seminal case regarding copyrighted architectural plans and the RTKL. In Ali v. Philadelphia City Planning Comm’n, Jihad Ali appealed a trial court order affirming a decision of the Pennsylvania Office of Open Records (OOR) under the RTKL. See 125 A.3d 92 (Pa.Cmwlth. 2015). Specifically, Ali was contesting OOR’s decision not to order the Philadelphia City Planning Commission to provide Ali with unredacted duplicates of architectural plans that were protected under the Federal Copyright Act, pursuant to his records request. After a thorough examination, the Court held that the RTKL requires that a local agency must make the copyrighted architectural plans available for inspection upon request. Nevertheless, because the Copyright Act vests the copyright holder with exclusive authority to authorize duplication and the fixation of the copyright creates a presumption against authorization, the Court held that local agencies cannot be required to copy or duplicate the copyrighted plans as doing so could expose them to liability in Federal Court.
The best way to summarize this case in short is to paraphrase a line that my mother used to say to me every time we would walk into a store as a child…“You Can Look, But You Cannot Copy!!” If you have any questions on Pennsylvania’s Right to Know Law or how to guide your projects through the land development process, don’t hesitate to contact my office.
July 17, 2019
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