Re: Copyright in California Regulations

On 2/19/99, Sam Byassee <sam_byassee[_at_]shmm.com> wrote:
>
> On Thu, 18 Feb 1999, Bruce Hayden <bhayden[_at_]ieee.org> wrote:
> >
> > On Wed, 17 Feb 1999, Jon Binks <jonathan_binks[_at_]harvard.edu> wrote:
> > >
> > > Can someone help me here: what would be the actual copyright rationale
> > > for including state and local government works, such as statutes,
> > > ordinances and regulations? Why should copyright apply here?
> >
> > Well, when you try to apply the Copyright Act to the statutes,
> > they do appear to fall within. Then you have the problem that
> > federal stuff is exempted, which in some theories of interpretation
> > would imply that state and local government stuff is covered.
> >
> > I would think that you might be able to make the argument that
> > the statutes, regulations, etc. might be functional. However,
> > this does not really seem to extend to judicial opinions.
>
> In addition to the general public policy argument that the public should
> not be restricted from copying, distributing, etc. the work product of
> its elected officials and that ding so chills core First Amendment
> values, another copyright principle that appears applicable is the
> Merger Doctrine; that is, that because statutes, regulations, opinions,
> etc. have independent legal significance and each enactment "speaks for
> itself" (i.e., the meaning of an enactment, etc. is best understood by
> the words in the enactment, rather than someone else's explanation of
> it), the idea or meaning of the statute merges into the expression of
> it. The expression of the law IS the law.
>
> In addition, as further support for your functionality argument,
> official governmental action should be viewed as a tool of governance --
> they allocate rights and regulate conduct. This description would apply
> to judicial opinions, as well.
>
> > Also, we seem to have all assumed that statutes, rules, etc.
> > were created by (and owned by if copyright applies) by the
> > relevant government. But what happens if the language was
> > drafted by someone else, and then adopted by the government.
> > One place this does happen is with uniform laws. Another
> > potentially is when someone proposes laws or rules and such
> > is adopted without serious modification. Sometimes this happens,
> > esp. in the dead of night when no one can later figure out
> > where it came from.
>
> Interesting question. All I can offer is that when providing
> language for enactment, the author is implicitly dedicating the work
> to the public. At least one court, by the way, has held that when a
> legislative body adopts a privately copyrighted work as a standard
> (e.g., compilation of medical procedure codes to be used for medicare
> submissions), the copyright holder is not deprived of copyright
> protection in the compilation.

See http://www.hyperindex.com/hitsweb0/JUSTICE.htm for all the information you need on cases involving copyright of the law dating back to the early 1800's. There is actually a of of case law on this subject. This link will touch all the bases.

There is also an interesting case in Texas right now concerning copyright dispute over city regulations written by non legislative bodies as 'model codes' which are then adopted as law. The code writers want monopoly on the codes that are adopted, history suggests that once they become law they are in the public domain though.

The Texas Center for Public Information
<http://www.hyperindex.com/>

Steve Kelfer, President
(210) 887 7401
<mailto:cars[_at_]stic.net>

Bryan Wright, Legal Affairs
(800) 729 6637
<mailto:bwright[_at_]woodsrogers.com>

For more information on the publics right to know the law see: http://www.hyperindex.com/hitsweb0/JUSTICE.htm

*Note: This email correspondance conforms to law and policy.
*Please acknowledge receipt of this mail by clicking on 
*reply in your email program (you can send a blank message).
*If you do not wish to receive mail about the Center in the future
*please reply to this message and type 'remove' in the subject line.