Architect Contracts, the Copyright Act, and the Pennsylvania Right-to-Know Law

Allyson N. Lonas, Esq., (717) 221-7954, alonas@tuckerlaw.com

It’s no secret that public agencies engage architects and engineers rather frequently to start projects that are funded with taxpayer dollars. Because of that, when a public agency receives a right-to-know law request they are often forced to navigate the difficult intersection between transparency obligations under Pennsylvania’s Pennsylvania Right-to-Know Law (“RTKL”) and the protections afforded to copyrighted architectural materials. School districts, municipalities, housing authorities, redevelopment authorities, and other agencies routinely maintain contracts, plans, and design documents prepared by third-party architects. The issue arises where some of these designs, contracts, or parts of a contract have copyright or are copyrighted works. So, what happens when a member of the public makes a request under the RTKL seeking access to those materials that are protected by a third-party copyright? You often hear about something being protected by a copyright, but what does that actually mean when a member of the public seeks access to records that are presumed to be public but are protected by the RTKL?

It’s not an easy answer where agencies are often put in the difficult position of balancing the public’s right to inspect those records with the federal protections granted under the Copyright Act to the third party who holds the copyright.

It is well established that under the Pennsylvania RTKL, records in the possession of an agency are presumed to be public unless exempt under Section 708 of the RTKL, any federal or state law or regulation, protected by privilege, or judicial order or decree. 65 P.S. §67.305. Further, an agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §67.708(b). An agency is required to demonstrate, “by a preponderance of the evidence,” that records are exempt from public access. 65 P.S. §67.708(a)(1). So, where do copyrighted contracts and architectural works fit in?

The Copyright Act creates limitations on who can reproduce various materials. 17 U.S.C. §§106, 501. Copyright protection applies automatically to any original work of authorship, including architectural works. 17 U.S.C. §102(a). Notably, the Copyright Act precludes reproduction of any copyrighted work(s) without the consent of the copyright holder. 17 U.S.C. §§106, 501. Specifically, pertaining to RTKL requests, documents protected by the Copyright Act may be reviewed, but not duplicated without this consent. Ali v. Philadephia Planning Commission, 125 A.3d 92, 105 (Pa. Cmwlth. 2015). In Ali, the Commonwealth Court explained:  

Because we lack jurisdiction under federal law to resolve the question of whether a local agency’s disclosure of copyrighted material pursuant to the RTKL without the owner’s consent constitutes infringement under the Copyright Act, where a local agency has refused to duplicate a public record in response to a RTKL Request by invoking the Copyright Act, our review must be confined to determining whether the local agency has met its burden of proving facts sufficient to show that forced duplication of copyrighted material under the RTKL implicates rights and potential liability arising under the Copyright Act that can only be resolved by the federal courts.  

. . . a conflict between the Copyright Act and the RTKL with respect to access (i.e., duplication) where (1) the public record in question is protected under a copyright held by a third party and (2) the local agency does not have the consent of the copyright owner to the duplication of the public record in response to a RTKL request. With respect to the second element, we do not hold that the local agency is under any obligation to seek out the copyright owner and endeavor to secure its consent . . . we hold that where a local agency invokes the Copyright Act as a basis to limit access to a public record to inspection only, the absence of consent by the copyright owner to duplication in response to a RTKL request should be presumed.  

125 A.3d at 104-05. 

In other words, an agency may allow an individual to inspect but not copy contracts, architectural works, or materials that are copyrighted where an agency can demonstrate the contracts or architectural works are protected by the Copyright Act. Specifically, an agency is not required to request the copyright holders’ consent to duplicate the records.

Accordingly, if an agency can demonstrate that contracts or architectural works are protected under a copyright held by a third party and the agency does not have the copyright holders’ consent to duplicate the materials then the records are not subject to public access under the RTKL and an individual may only inspect the materials. Remember an agency only needs to demonstrate by a preponderance of the evidence that the records are exempt under the RTKL, which an affidavit can often serve as sufficient evidentiary support for an agency to meet its burden.

Ultimately, the intersection of the RTKL and the Copyright Act demonstrates that public access rights are not without limitation. Agencies are increasingly tasked with navigating competing obligations involving transparency, intellectual property protections, and practical concerns surrounding public infrastructure and design materials. Architects and engineering firms invest substantial time, resources, and expertise into the development of plans and technical specifications for public projects, and those interests do not disappear merely because the records are maintained by a public agency.

At the same time, the RTKL remains an important tool for ensuring accountability and public oversight concerning government spending and decision-making. The distinction between inspection and duplication of copyrighted works attempts to strike a balance between these competing principles.

Therefore, it is critical for agencies to proactively address copyright ownership, duplication rights, and RTKL compliance during the contracting process to avoid future disputes and uncertainty regarding access to architectural records. As requests are made under the RTKL, agencies should carefully evaluate how contracts with their design professionals, copyright protections, and public access to the records intersect before simply responding to a request. Agencies need to be prepared to address both transparency obligations and copyright concerns from the beginning of a project. The importance of engaging a solicitor early is important where a request involves intellectual property rights and an agency’s legal obligations under the RTKL.

Reprinted with permission from the May 20, 2026, issue of The Legal Intelligencer. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.