Intellectual Property

Can You Copyright The Law?

It seems absurd that private organizations can claim ownership over the law, but they have, and courts have agreed with them.

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A basic tenant of a functioning democracy is access to information and, in particular, access to the law. Everyone should be able to read the law, understand it, and discuss it. It seems reasonable that if we expect everyone in our country to follow the law, they should be able to access it. Not only does such a policy contribute to informed citizenry, but it also seems to be linked to a very basic due process issue.

Therefore, it seems reasonable to assume that the law is in the public domain and not subject to copyright protection. In fact, there is a specific provision in our copyright law that states that there is no copyright protection for works of the United States government. Federal statutes, regulations, and judicial opinions are all in the public domain. Makes good sense, right?

While making the law available seems like a basic tenet of democracy, many laws — whether they are statutes or judicial decisions — are not easily or freely accessible to the general public, and there have been various efforts by individuals to promote greater availability of public information. Such initiatives should be praised, and yet there have been several court cases dealing with the question of whether all laws are in the public domain and whether individuals who post such laws are actually in violation of copyright.

Public.Resource.Org has tried to address the issue of lack of public access to government documents and laws by publishing legal material on its website. Some of the materials include regulations that have become law through “incorporation by reference,” such as those developed and created by standards organizations (for example, building codes) and incorporated into the law at the federal, state, and local levels. Because they are incorporated by reference, their actual text may not be available or easily accessible. One of Public Resource’s projects included copying laws that were incorporated by reference and posting them on its website.

The fact that they are part of the law, whether by text or incorporation by reference, should mean that they are in the public domain and the public is entitled to access. However, the industry groups that develop these standards argue that they own copyright in the provisions that they developed (and later lobbied for adoption as part of the law). It seems absurd that private organizations can claim ownership over the law and effectively control what price must be paid, or even whether a citizen can access it. However, several federal district courts have ruled against Public Resource’s actions in posting the incorporated building code laws, finding in favor of the industry groups’ claims to copyright. Not only did these courts find that industry associations held a valid copyright, but also that posting the laws was not a fair use. These cases are now before the Eleventh Circuit and D.C. Circuit.

While not binding — and not addressing an identical fact pattern — the Fifth Circuit addressed the issue several years ago. In Veeck v. Southern Building Code Congress, the court found that “a continuous understanding that ‘the law,’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.” Veeck validated the idea that publishing laws and making them accessible to society is a public service.

Ultimately, and as the Veeck court noted, industry groups do not rely on copyright protection as an incentive to create model laws. They produce these codes in hopes that they will be adopted into law because they are crafted in a way to benefit their industry, including through standardization.

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Should the Eleventh or D.C. Circuit find against Public Resource, the opinion could result in a circuit split from the Fifth Circuit and would be ripe for Supreme Court review. Hopefully it won’t even get that far, and the circuit courts will agree that no matter who writes a draft law, once it is incorporated into actual law, it should be freely and open available to all.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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