Copyright in laws

While it could be said that trademark and patent are close cousins to copyright law, there is no such thing as copyright’s in-laws.  The real question is, should there be copyright in laws?

Most people know at least vaguely that government works in the US are not subject to copyright protection.  Of course, nothing is ever that simple.  First, section 105 of the copyright law says that there is no copyright protection in works of the United States government, meaning only works created wholly by government employees in the course of their employment are unprotected; works created by others on behalf of the govenrnment may still have copyright (as I noted a few days ago here).  Second, section 105 says there is no copyright in works of the United States government, meaning that the law is silent about works created by state and local governments.  And that, apparently, is the rub.

Some time ago, the state of Oregon tried to assert that it held copyright in its state code of laws.  After a brief skirmish with some advocates of open government, Oregon backed down from this claim, saying that, at least, it would not enforce any claim it had.

Now comes news that the same person who took on Oregon has been told to stop posting the legal code of the State of California — there are reports from Slashdot here, Techdirt here (with lots of generally unenlighting comments), and the Santa Rosa Press-Democrat here.

The argument against states and local governments asserting copyright in their laws and regulations is pretty straightforward — people should be able to access the rules of communal living that they are expected to follow.  California, on the other hand, has an interesting reason for making its copyright claim; the $800,000 it raises by selling print copies and digital access to its state code benefits the California taxpayer.  And no matter what our vague intuitions might tell us, the federal copyright law does not prevent such a claim.

In fact, copyright claims even in national laws are not unusual; most countries with roots in the British empire, other than the US, have some version of “Crown Copyright.”  But in the United States, at least, it is clear that the Copyright Office does not look kindly on these claims for protection in state and local laws, even if they are not excluded by statute.  The Compendium of Copyright Office Practices informs examiners in the Office that:

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

So the Copyright Office would decline to register such works as a matter of public policy, which would complicate any attempt by Oregon or California to sue to enforce the copyright claim.  It also speaks volumes about the claim that copyright claims in public laws are intended to serve the interests of the public themselves; the Copyright Office apparently doesn’t buy it.

The bottom line here is that anyone relying on the absence of copyright in government works has to be careful.  Contractors who work for the government but are not federal employees may hold copyright even in US works, and the possibility of claims by state and local governments is very real indeed.

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