State ownership of copyright

1. States and the federal government can and do own copyrights - at least in the case of copyrights sold or assigned to them.
2. Most, if not nearly all foreign countries who care about it, claim copyright in their statutes and other government publications. The U.S. waiver probably is domestic in reach only - i.e., the federal government can assert copyright overseas.
3. The federal waiver is of federal copyright in federally-generated material. It does not purport to preclude states from claiming copyright in state-generated material, including statutes and cases.
4. There is caselaw that says that states do not have copyright in cases and laws - though not US S.Ct. cases under the 1976 act. The copyright office takes the position that there is no state copyright of state cases or statutes.
5. The issue of how a state can grant a publisher an exclusive right to publish state laws without there being a copyright or copyright-like interest by the states is one I have not tracked down yet, though some states do this.
6. Merger would not, it seems to me, work as Terry Carroll suggests. If a state could copyright its cases and statutes and regs, it could then prohibit anyone but a licensee from publishing them. I would be able to reproduce them for scholarly purposes or for representing clients, perhaps, but this would not be the same as me competitively publishing them or even a subset of them. For example, it might well not be fair use for me to publish online the full text of a statute or case decision, let alone a significant subset of them.

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Prof. Steven D. Jamar, Director LRW Program
vox:  202-806-8017
Howard University School of Law
fax:  202-806-8428
2900 Van Ness Street NW
mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008
http://www.law.howard.edu/faculty/pages/jamar

"I never worry about the future.  It comes soon enough."

Albert Einstein (1945-46; Einstein Archive)