Re: copyright of pleadings

On 04/22/96, Steven Jamar <SJamar[_at_]aol.com> wrote:
>
> Should we carve out an exception for legally operative documents?

For lawyers, this is an important question (thought I doubt anyone else really cares). I'm in Canada and the government here has been trying to assert a Crown copyright in the work of judges, i.e. in the judgments themselves. They started doing this when they began to realize that law report publishers were getting big bucks for their products and, in particular, when they realized that on-line services were getting paid by the hit. All of a sudden, a cash-strapped government saw a revenue source and that was enough. As far as I know, this has not yet been litigated so it may or may not hold up.

There is an interesting difference here, of course, in the legal structure. As we are still a monarchy and the Queen is both an office and a person, copyrights that exist "in right of Her Majesty the Queen" are different than an attempt by "the people" to exclude themselves from particular works by giving a copyright to "the government" which in the US is supposed to just be "the people."

As to the question of whether or not lawyers' work product should be copyrightable, that is another question. Can I copy your pleadings? Can I copy you trust or contract?

I would have to say yes.

The function of copyright is to encourage creative expression by providing an economic incentive. The function of pleadings/trusts/ contracts is to manage the affairs of the citizenry in an organized manner. The need for a legal structure, for a "system" which allows us to govern ourselves should, in my opinion, override any private, proprietary claim.

Also, there is the question of expectation. When I wear my writer's hat (I both write professionally and practice law) I expect to make money from what I do and I am doing it for that reason. However, when I am drafting pleadings, I expect to get the case before the court in such a way as to look after my client's interests. I am not there to make a buck from my turn of phrase. I don't expect copyright protection.

It is a lot like the squabbles that go on within the copyright collectives of the world between the academic writers -- who want their work proliferated as widely as possible and who are on salary someplace where advancement depends on publication -- and the professional writers who make their livings off their copyrights. There are different goals and different expectations.

Tim Perrin
Writer/Broadcaster/Lawyer/Software Tycoon 415-A Kootenay St.
Nelson, BC V1L 1K7
(604) 354-1070
(604) 354-1140 (fax)
tperrin[_at_]worldtel.com Received on Tue Apr 23 1996 - 16:16:03 GMT