Aug. 2, 2017 – Attorneys and other members of the public intuitively understand that primary law belongs in the public domain. The right to unobstructed access accrued under early and modern copyright statutes, and in common law articulations of constitutional due process and free speech rights.
Copyright of Federal Law was Curtailed Early
In 1834, a unanimous U.S. Supreme Court recognized that the wording of laws should be free from copyright, remarking in Wheaton v. Peters that no publisher ever had, and should not have, any ownership of the written words of the Court, nor could judges ever confer that right.
edu deborah.darin marquette Deborah Darin is a lawyer, librarian, and adjunct professor at Marquette University Law School. She teaches legal research and is vice president/president-elect of the Law Librarians Association of Wisconsin (LLAW), a chapter of the American Association of Law Libraries.
Half a century later, the Court hit the point more directly and included state cases explicitly, in Banks v. Manchester. A publisher of state decisions had a contract with Ohio and sued to prevent another publisher from copying and selling the same cases. The Supreme Court ruled that there was no copyright in the wording of any judicial decision. The Court said the entire work is “… free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”1
The U.S. Copyright Act confers freedom from copyright upon any work produced by the federal branches: “Copyright protection under this title is not available for any work of the United States Government.”2
However, Section 105 of the Act does not apply to state statutes or the laws of other localities.
States ‘All Over the Map’ When It Comes to Access
States can individually declare their statutes ineligible for copyright protection. Some have, to facilitate public access. Short of an explicit declaration, state public records laws can provide guidance as to what material is freely accessible without limits.
However, most states do not have clear law on this issue. The questions extend beyond statutes and regulations, arguably reaching any government-produced document, map, or other material.
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Read this article in InsideTrack, take a look at Fastcase’s FAQ, and sign up for helpful webinars on Fastcase’s website.
National Interest in Digital Access to State Materials
Harvard’s State Copyright Resource Center hosts an interactive map showing relevant laws and the status of public domain access in each state. Every state is given an openness score based on the availability of public records and statutory protection of access. Click on each state for information. Citations to scholarly publications and links to other resources are provided for researchers on the site.
State profiles often include some commentary, such as this excerpt from the page for Colorado:
Prior to 2011 Colo. Rev. Stat. Ann. § 2-5-115 said that "Colorado Revised Statutes and ancillary publications ... shall be copyrighted." In 2011 the Colorado legislature revised this language to language more in line with Supreme Court precedent. … Changes such as this have been due in large part to open government initiatives such as that of Carl Malamud.3
To Publish or Not: Print versus Digital Access
Significant variety exists among states where digital access to official primary law in the public domain is not available. Many states still publish a print version of the statutes. Print supplements and slip laws are expensive, leading some states to jettison updates in favor of a biennially updated set.
Some states annotate their state codes and assert copyright over these annotations, if not the statutory wording. Wisconsin is one of the states in this category. Some of these government products are considered official, while some are not. Wisconsin statutes are “certified” by the state’s Legislative Reference Bureau.
Several state governments no longer publish statutes at all. States that ceased publication of print statutes have entered into contracts with commercial publishers instead. Vendors like LexisNexis and Westlaw produce regularly updated printed statutes that have become the official state codes in some of these jurisdictions. When the only reliable version of a state’s statutory code is annotated and published by a commercial entity, fights have occurred over whether individuals or organizations can freely copy or disseminate that material.
If a state enacts legislation adopting the standards of the Uniform Legal Material Act (UELMA), the state agrees to provide official, authenticated, digital versions of its primary laws in an accessible format, usable by the public.4 As of July 2017, 16 states and the District of Columbia have enacted UELMA legislation.
Consumers and legal professionals desire reliable, free digital access to official state laws, and most state governments grasp the responsibility to provide the entire body of their state’s law to the public. The number of UELMA enactments likely will increase as state legislatures continue to recognize the need for official, authenticated, updated, and archived digital versions.
Georgia’s Copyright Infringement Case: Pushing for More Open Access
A Georgia copyright infringement case currently on appeal5 (following a partial dismissal on summary judgment), was brought by the state’s code commission against the nonprofit Public Resource Inc. for posting the Official Code of Georgia (OGCA) on its website. The organization’s founder, Carl Malamud, believes that the information should be freely available. The official code is annotated and published by LexisNexis, which is not a party in the case.
The defense argues that because no other reliable, official version is available to the public, the LexisNexis code has become the public domain version. Public Resource agrees that annotations in unofficial codes are copyrightable by their private publishers. The question is whether the State of Georgia can register and assert copyright in its own annotations to its only official code and prevent Public Resource from scanning and posting the OGCA.
Public Resource also argues that the Copyright Act should be interpreted considering federal common law. Many organizations trying to get more open access to government material have filed amicus briefs on behalf of Public Resource.
Privately Published Building Codes and the Code of Federal Regulations
Despite apparent clarity about legal protections for open access to federal law, wrinkles have occurred.
Materials incorporated by reference into the Code of Federal Regulations (CFR) are the source of copyright litigation. Model building codes that include electrical and other construction standards increasingly are tested and developed entirely by private entities and incorporated by reference into municipal codes and even federal regulations, where the requirements are mandatory and enforceable.
The Fifth Circuit, in Veeck v. S. Bldg. Code Cong. Int'l decided the extent to which an entity can assert copyright protection over its model codes once they are adopted by a government authority.6
The owner of a website sought declaratory relief stating he had not infringed the defendant’s copyright since he was posting facts on his website that essentially were regulations. The standards were incorporated by reference into the Federal Code of Regulations but were not displayed in the CFR.
The plaintiff won his case in the en banc appeal. The decision, including the dissents, is instructive regarding business and legal interactions that occur around access to digital information.
An Open Access Future?
If commercial entities want to produce annotated versions of government work for private sale, copyright protection is available. As the reach of open source digitalization continues to grow, government entities might decide to embrace, rather than fight, the benefits of systematically developing their work product for the public domain. That would be better for everyone.
Elizabeth Scheibel, No Copyright in the Law: A Basic Principle, Yet a Continuing Battle
7 Cybaris Intell. Prop. L. Rev. 350 (2015-2016).
Ashley Messenger & Dennis Pitman, Can States Use Copyright to Restrict the Use of Public Records?, 29 Comm. Law. No. 3, pp. 4-8 (Feb. 2013).
Nina A. Mendelson, Private Control Over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737 (2013-2014).
Victor Li, Who Owns the Law? 100 A.B.A. J. 48 (2014).
Sarah Glassmeyer, Access to Law in the Twenty-First Century, 21 AALL Spectrum 34 (2016-2017).
Irina Y. Dmitrieva, State Ownership of Copyrights in Primary Law Materials, 23 Hastings Comm. & Ent. L.J. 81 (2000-2001).
Deborah Tussey, Owning the Law: Intellectual Property Rights in Primary Law, 9 Fordham Intell. Prop.Media & Ent. L.J. 173 (1998-1999).
Electronic Frontier Foundation
State Copyright Resource Center at the Harvard Law Library
public.resource.org and law.resource.org, and profile of founder Carl Malamud
Law.gov – A Proposed Distributed Repository of All Primary Legal Materials of the United States
1 128 U.S. 244, 253-54 (1888), citing a Massachusetts state case about the ownership of laws residing with citizens.
2 17 U.S.C. § 105.
3 See, e.g. Letter from Carl Malamud to the President of the Colorado Senate; see generally Public.Resource.Org.
4 Find out more about Wisconsin statutes and UELMA in the November 2016 issue of InsideTrack.
5 Code Revision Commission, Et Al, v. Public.Resource.org, Inc., appeal filed in the 11th Circuit, April 7, 2017. The case below Code Revision Commission, Et Al, v. Public.Resource.org, Inc., Civ. No. 1:15–CV–2594, ___F. Supp.3d ___, (N.D. Ga. March 23, 2017), 122 U.S.P.Q.2d 1350.
6 293 F.3d 791 (5th Cir. 2002).