Edith H. Jones

“ The issue in this en banc case is the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become "the law". Specifically, may a code-writing organization prevent a website operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. ”

“ Article I, Sec. 8, clause 8 [U.S. Constitution] . To this end, copyright law assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorships.
Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1289-90 (1991) . The statute excludes from copyright protection ideas, procedures, processes, systems methods of operation, or information in the public domain. ”

“ This "metaphorical concept of citizen authorship" together with the need for citizens to have free access to the laws are the ultimate holding of Banks. Id.
BOCA described free access as a policy "based on the concept of due process," the people's right to know what the law requires so that they may obey it and avoid its sanctions. SBCCI and the dissent contend that this "due process" reasoning involves nothing more than the factual issue of "sufficient" public access to the building codes of Anna and Savoy. ”

“ But the court then remanded the case for further development in light of the novelty of the issue, the insufficiency of the trial court record, and the apparent trend toward adoption of model codes by governmental entities. The court nevertheless was skeptical that BOCA would prevail, commenting
it is hard to see how the public's essential due process right of free access to the law (including a necessary right freely to copy and circulate all or part of a given law for various purposes) , can be reconciled with the exclusivity afforded a private copyright holder . ”

“ That these "authors" may be more generous, or less sophisticated, than the large and well-funded code-writing organizations before us hardly furnishes a reason to approve an open-ended test of authorship of the law. ↑ We are not stating or holding that the authorship of government works never presents a legitimate issue of copyright. On the contrary, the Copyright Act carefully defines the extent to which federal government employees and contractors can obtain copyright protection. ”

“ SBCCI contrasts government employees with the private "authors" of model codes who allegedly depend on copyright incentives in order to perform their public service. SBCCI concludes that this "prong" of Banks does not apply to private code-writing organizations whose work has been adopted or incorporated into statutes, ordinances, or government regulations. Two courts, in addition to the panel that originally heard this case, have identified the consideration of authorship incentives as a "holding" of Banks. See Practice Management Info. ”

“ The court in Nash further observed that a legislature likewise could not deny public access to statutes.
Banks represents a continuous understanding that "the law," whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright. [4] Modern decisions have followed suit. [5] Significantly, the 1976 Copyright Act specifically denies protection to federal statutes and regulations. ”

“ Trade organizations have powerful reasons stemming from industry standardization, quality control, and selfregulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them. ”

“ In this opinion, which will be discussed further infra, the First Circuit considered the argument of BOCA, the model code writer, urging copyright protection for a model building code similar in origin and purpose to the one before us. BOCA's argument, the court said, "implies that the rule of Wheaton v. Peters was based on the public's property interest in work produced by legislators and judges, who are, of course, government employees." ”

“ Emphasizing not the language of § 102 (b) , but the "policy" of the merger doctrine, SBCCI contends that merger poses no bar to copyright protection here. The idea/expression dichotomy was enacted into law by Congress to "balance [] the competing concerns of providing incentive to authors to create and foster [] competition in such creativity." Kern River Gas Transmission Co. v. The Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990) . [15] Veeck's merger argument ignores the goal of fostering competition in creativity. ”

“ Judge Little, dissenting from the panel opinion in this case, observed that
. . . the merger doctrine is especially appropriate because other methods of expressing the idea are foreclosed. [citation omitted] An individual wishing to publish the text of a law cannot develop his own, unique version and still publish an authoritative copy.
Veeck v. Southern Bldg. Code Cong. Int'l, 241 F.3d 398, 416 (5th Cir. 2001) (Little, J., dissenting) . It should be obvious that for copyright purposes, laws are "facts": the U.S. Constitution is a fact; the Federal Tax Code and its regulations are facts ”

“ The same broad understanding of what constitutes "the law" for copyright purposes underlies the Court's later decision in Banks v. Manchester, 128 U.S. 244, 9 S.Ct. 36 (1888) . The Court there denied a copyright to a court reporter in his printing of the opinions of the Ohio Supreme Court. The Court first noted that whatever work the judges perform in their official capacity cannot be regarded as authorship under the copyright law. As a question of "public policy," the Court stated that,
there has always been a judicial consensus, from the time of the decision in the case of Wheaton v. ”

“ At first glance, Practice Management appears to pose a closer issue because the HCFA did not simply refer physicians to the AMA's coding system. The court's opinion directs the reader to HHS's notice in the Federal Register announcing that HCFA would require physicians to
use exclusively a common procedure coding system. ”

“ But when the North Carolina Building Officials were permitted to publish a model code on their non-public access website, SBCCI expressly reserved its rights. ↑ What constitutes "the law" when a governmental entity adopts or incorporates by reference an author's copyrightable work will be considered infra, Part III. ↑ Our decision might well be the opposite, if Veeck had copied the model codes as model codes, or if he had indiscriminately mingled those portions of "the law" of Anna and Savoy adopted by their town councils with other parts of the model codes not so adopted. ”

“ Instead, it permits their adoption by reference and furnishes a copy of the adopted code to the entity. SBCCI also generously allows that if a governmental entity were to publish the building code on an Internet site to meet its due process obligation, that would be a fair use. ”

“ Practice Management, 121 F.3d at 519 (" [T] he AMA's right under the Copyright Act to limit or forgo publication of the [coding system] poses no realistic threat to public access.") .
Both the Second and Ninth Circuits feared that reaching the opposite conclusion in those cases would have "expose [d] copyrights on a wide range of privately authored model codes, standards, and reference works to invalidation." Practice Management, 121 F.3d at 519. federal court rules regarding The Ninth Circuit suggested that citations could invalidate the copyrightability of the Blue Book. ”