Re: Copyright of laws

On Mon, 21 Nov 1994, Paul Robinson wrote:
>
> For example, the U.S. *specifically* objected to the "Moral
> Rights" provisions of the treaty in its accession to the treaty...

This is not correct. The U.S. not only did not object to the moral rights provisions of berne, but went to great pains to get the approval of WIPO director Bogsch (pardon the mangled spelling), who agreed with the U.S. position that sources of law outside of the Copyright Act served to satisfy the moral rights obligations. Examples include state and federal trademark, defamation, and unfair competition law.

> with
> Teddy Kennedy sneaking adherence to the Moral Rights clause into some
> other unrelated bill that was signed by President Bush.

Riders such as this are, of course, common practice in Congress, one's feelings about them aside. If members of Congress were unaware of the contents of the bill on which they were voting, or President Bush of the bill he was signing, this is a statement about each's competence, rather than Senator Kennedy. Contents of congressional bills are well-publicized, and an amendment can not fairly be characterized as "sneaking."

I take no position on Senator Kennedy's character, and suggest that this list might be better served by keeping such digressions in more appropriate fora.

> 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.

While the gist of this is correct, to nitpick, there is in fact no such regulation -- there is only a statement of policy in the Compendium of Copyright Office Policy (section 206.01).  

> 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!

While I agree with the conclusion, such an argument has been presented before and (quite properly, I think), found lacking.

The motivation for continued creation of works is the basis for the copyright power. However, there is no need that every application of the statute enacted pursuant to that power be in protection of a particular work that would not otherwise be created. If this were so, many works that are today afforded copyright would be unprotected. There is no basis for assuming that the authors' motives must be tested in order to assess whether a work is copyright subject matter.

In my opinion, the constitutional basis for concluding that copyright cannot cover laws is the Due Process clauses: persons have a right to know the laws that they are expected to obey, and any statute designed to impair dissemination of that information goes afoul of the Due Process clauses.

> 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.

This is clearly true. Even in the U.S., it is only the United States government that is pretty much prevented from copyrighting its works by section 105. This restriction does not apply to state governments, and it certainly does not apply to foreign governments.

--
Terrence J. Carroll, Esq.        | 
Santa Clara, CA                  |      Quayle/Bono in '96. 
carrollt[_at_]netcom.com              |