Who Owns the Law?

Author:Mr Paul Kilmer
Profession:Holland & Knight LLP

A city building code can be owned by a private organization, according to a

panel of one federal circuit court. In Veeck v. Southern Building Code

Congress International Inc., over a strong dissent, two judges of the U.S.

Court of Appeals for the Fifth Circuit found copyright infringement where an

individual posted a privately developed model building code on the Internet

after the code had been adopted into law by several municipalities.

Rejecting defenses of fair use, merger, due process, waiver, freedom of

speech (First Amendment) and copyright misuse, the majority found that the model

code did not enter the public domain when enacted into law. The court went on to

find that the enacted codes were sufficiently available to the public, either

through government offices or by purchase from the copyright owner, that the

public was not denied reasonable access to and knowledge of the law due to the

copyright claimed in the work.

Other courts have found that there can be no copyright in judicial opinions

and legislative enactments. In 1888, the Supreme Court held in Banks v.

Manchester that a private compilation of court decisions was in the public

domain since judicial opinions are issued by publicly paid judges and the public

has an overriding interest in free access to the law. Similarly, in 1898, Supreme Court Justice Harlan, sitting as a circuit judge

in Howell v. Miller, found that copyright could not exist in statutes, even if

privately printed.

More recently, in the 1980 decision in Building Officials and Code Adm. V.

Code Tech., Inc., the First Circuit expressed doubt that a copyright could

be enforced in a privately created building code once that code was adopted into


The Fifth Circuit panel attempted to distinguish the prior Supreme Court and

circuit decisions primarily by reliance upon: (1) a case holding that "Red

Book" car valuations were entitled to copyright protection even though they

were used for calculating insurance payments under the laws of some states; and

(2) a decision holding that an American Medical Association's coding system

required for compliance with certain government benefits regulations (Medicare

and Medicaid) was entitled to copyright. It would not appear either of those

prior decisions supports the Fifth Circuit's view.

Neither the "Red Book" nor the AMA's medical coding system were

published with...

To continue reading