Re: Copyright of laws

From: Paul Robinson <PAUL[_at_]tdr.com>
Date: Fri, 18 Nov 1994 19:09:59 -0500 (EST)

From: Paul Robinson <PAUL[_at_]TDR.COM>
Organization: Tansin A. Darcos & Company, Silver Spring, MD USA

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John J.Norris, MLS <JOHNN[_at_]TIGER.HSC.EDU>, writes in CNI-Copyright:

> Terry Carroll, carrollt[_at_]netcom.com, of Santa Clara, CA
> replied (and left me confused):
>
> >However, it is up to each nation to determine if such works
> >are copyrighted, even if they originate in another nation.
> >In the U.S., for example, the view is that no law is
> >copyrighted
>
> I thought the Berne Convention set an international standard
> for duration of copyright based on the native country's
> domestic copyright laws. If the Berne does give UK copyright
> law teeth in the US, then the UK copyright law itself is
> copyrighted under US law. And if it is copyrighted, how can
> another US statute change that?

Jamie Wodetzki <j.wodetzki[_at_]nla.gov.au>, writes:
>
> This strikes me as odd. Are you sure about this?
>
> I can agree that it's OK for the US Govt to decide that it
> won't assert copyright of its own laws.. [if] true, then
> the US Govt is saying to other Nations, we'll protect all
> authors from your country, but we won't protect the copyright
> of the Govt of your country. Where does the Whitehouse (or
> Congress, I should say) get off saying to another Nation,
> "we'll decide which of your copyrights we protect" ?
> Where is the basis in Berne for this?

Let me correct a number of errors in the above opinions.

1. The U.S. Congress, in examining the Berne Convention treaty, considered whether it was "self executing", e.g. could be implemented without any leglisation by Congress. It was decided that Berne is *NOT* self executing, and some of the provisions of that treaty require implementation by enabling legislation, as well as legislation needed to trim off some provisions of U.S. law which is not in compliance. As such, if a provision which isn't self executing is not implemented, that portion of the treaty doesn't get implemented. And if the U.S. objects or makes a reservation to the treaty, that part doesn't get implemented either. For example, the U.S. *specifically* objected to the "Moral Rights" provisions of the treaty in its accession to the treaty, with Teddy Kennedy sneaking adherence to the Moral Rights clause into some other unrelated bill that was signed by President Bush.
2. The Berne Convention by its own text (Paragraph 4) allows a country to decide what level of protection is to be accorded to the text of statutes and treaties:

    (4) It shall be a matter for legislation in the countries of     the Union to determine the protection to be granted to     official texts of a legislative, administrative and legal     nature, and to official translations of such texts.

A country could, by this text, give *no protection at all* to "official text of a legislative... nature" and be in compliance. (Determining the protection to be granted to be zero *is* a determination.)

The online reference for the Berne Convention is: URL: gopher://gopher.law.cornell.edu:70/00/foreign/fletcher/BH006-1971.txt

3. It is not the statute law that dictates that laws are not subject to copyright, but the published policy of the Copyright office as stated in the regulations that, in general, the text of statute laws and treaties are not subject to copyright. Generally, the copyright office will not accept a registration consisting only of the text of a statute; a foreign government would have to file a registration in the U.S. to sue and then either produce a refusal to register and possibly sue the registrar of copyrights, or have a court find that a foreign government has the right to restrict publication of its laws.

Unlike Europe and other countries modeled on European law, the U.S. takes a different philosophical standing than most other countries. In most European countries, the State is entitled to do anything, and can enact a law for any purpose. The U.S. has a different standard, that there must be an explicit grant of power to the government by the Constitution to allow the government to do something. (This is a standard that Federal Judges, of late, have tended to ignore, IMO in violation of their oath of office.)

Copyright in the U.S. is not a "natural right" that anyone is entitled to; it is a special creation of the Legislature caused by an explicit grant of power in the U.S. Constitution in which the exclusive right to one's writings is protected to encourage the expansion of ideas.

It could be argued that a government will not stop writing laws if those laws lack copyright protection, and that such protection is irrelevant to their continued creation, as they will be created irregardless of protection of copyright in their text. Therefore it could be arguable that granting copyright in the text of laws could conceivably be unconstitutional!

4. Other works of governments and of quasi-governmental agencies and international organizations *can* be copyrighted. There is specific provisions either in treaties, law or regulation stating that organizations such as U.N. Agencies and the OAS can issue publications that are protected by copyright. I suspect that if it wanted to, the Crown could conceivably sue someone in the U.S. that reproduced the British Patent Office summary books without their authorization, assuming such would be held to be protectable subject matter.

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Paul Robinson - Paul[_at_]TDR.COM
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Received on Sat Nov 19 1994 - 01:01:42 GMT