Congress Considers the Scope of Copyright

By Emily Feltren

The House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet met today to consider the “scope of copyright protection.” The hearing covered the need for a making available right and a broadcast right, and the availability of state laws, technical standards, and codes under copyright. The witnesses were David Nimmer, Of Counsel, Irell & Manella, LLP and Glynn S. Lunney, Jr., McGlinchey Stafford Professor of Law, Tulane University School of Law on a making available right; Mark F. Schultz, Associate Professor of Law and Director of Faculty Development, Southern Illinois University School of Law and James Love, Director, Knowledge Ecology International on a broadcast right; and Patricia Griffin, Vice President and General Counsel, American National Standards Institute and Carl Malamud, President, Public.Resource.Org on copyright of state laws, standards, and codes.

While the hearing covered several important topics of interest to law librarians, the testimony and follow-up questions on copyright and accessibility of state laws, standards, and codes were particularly noteworthy. Underlying the discussion was the Fifth Circuit’s correct finding in Veeck v. Southern Building Code Congress that “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.” Several members of the Judiciary subcommittee expressed support for this idea, including Reps. Darrell Issa (R-Calif.), Blake Farenthold (R-Tex.), Hank Johnson (D-Ga.), and Zoe Lofgren (D-Calif.). As Rep. Lofgren said, “It seems to me very clear that you cannot have secret law.”

AALL’s Government Relations Policy clearly articulates the need for public access to legal materials. It states: “Government information, including the text of all primary legal materials, e.g., judicial and administrative decisions, statutes, and regulations, must be in the public domain and available to the public without restriction.” On June 1, 2012, AALL joined other open government organizations on a letter to the Office of Management and Budget urging reform of the incorporation by reference system. The letter stated, “We believe it is imperative that the law be readily accessible for all to read and use. That is a central requirement of our democratic system. Accordingly, we strongly agree that standards incorporated by reference into federal regulations should be widely available to the public, without charge, and that such standards be should deemed in the public domain rather than subject to copyright restrictions.” Recently, AALL promoted Malamud’s petition for an amendment to the Copyright Act that would make clear that edicts of government have no copyright in the United States. A number of law librarians signed the petition, which was discussed during the hearing.

This week, AALL is taking part in the Electronic Frontier Foundation’s Copyright Week, six days of discussion about key principles that should guide copyright policy. Appropriately, the topic for today is the public domain. The principle states, “The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.” AALL strongly supports this principle, and we’re pleased to be participating in Copyright Week. For more on copyright issues impacting law libraries, please visit AALL’s Copyright Committee’s blog and follow them, and the GRO, on Twitter. And stay tuned for more on Copyright Week!

One Response to Congress Considers the Scope of Copyright

  1. […] detailed in Emily’s recent post, “Congress Considers the Scope of Copyright,” AALL has consistently urged for reform of the incorporation by reference system to allow for […]

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