The Colorado legislature this year, in Feb. 2014, filed for another copyright concerning the state statutes (see bottom of the page for the copyright notice). This time the copyright does not cover the entire Colorado Revised Statutes as it did in 2006. Very generously, the Colorado legislature only filed a copyright for “original publications and “editorial work ancillary to the 2013 Colorado Revised Statutes.” In addition to the language in the copyright filing, the Colorado Legislature also added the same exact language to Colo. Rev. Stat. § 2-5-115. As I indicated in a previous post, I have no clue what “editorial work ancillary” to the state statutes means.
Colorado Revised Statutes and ancillary publications thereto, as published, shall be the sole property of the state of Colorado as owner and publisher thereof. The committee, or its designee, may register a copyright for and in behalf of the state of Colorado in any and all original publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by the general assembly or its staff. The committee shall use its best efforts to ensure that any federal copyright registered pursuant to this section is appropriately maintained. Any prior actions of the committee and the revisor in securing such federal copyright are hereby validated.
— Colo. Rev. Stat. § 2-5-115 (emphasis added).
It appears that outside that one section in the Colorado Revised Statutes, Colo. Rev. Stat. § 2-5-115, the terms “original publications” and “editorial work ancillary” that have not been used in any other legislation on the state or federal level. Furthermore, there has not been a single court that has mentioned the term “editorial work ancillary” in a state or federal court. Lastly, the single word, ancillary, itself is not even mentioned in Title 17 United States Code at all (that is the section of federal law that governs copyrights).
Broadening my search a bit, I used the phrase “work ancillary,” leading to a bill that appears to have been introduced twice in the New York General Assembly (legislature).
So to find a definition, we are pretty much starting from scratch.
This is not the first time and probably not the last where an unclear term is used in legislation. Fortunately, there is some guidance for situations like this, where there is no clue as to what the word means.
Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.
— Colo. Rev. Stat. § 2-4-101.
The Colorado Supreme Court has echoed similar sentiments toward trying to understand words and phrases of the legislature.
Statutory words and phrases should be given their ordinary and accepted meaning unless they have acquired a technical meaning through legislative definition or judicial construction.
— Parrish v. Lamm, 758 P.2d 1356, 1368 (Colo. 1988): See also People v. Browning, 809 P.2d 1086 (Colo. App. 1990).
Following the guidance of both Colo. Rev. Stat. § 2-4-101 and the Parrish court, I am going to construe a reasonable meaning from the ordinary usage of the words.
But before I start getting into common usage and things, it is probably helpful to know what all goes into the Colorado Revised Statutes to be able to determine, what is original work and what is “editorial work ancillary” to the state statutes.
Colorado Revised Statutes – Inclusion – Non-Statutory
It turns out Colorado has a whole statute (two and a quarter pages, single spaced) that describes everything non-statutory that goes into the statutes. For brevity’s sake, I am going to make a summation of the categories, and not define the subcategories. If on the other hand you want to read everything that is a non-statutory inclusion feel free to look up Colo. Rev. Stat. § 2–5-102.
1. Extra statutory stuff – statute history, related court opinions and the annotations, cross references, etc.
2. Founding documents (both federal and state) – Declaration of Independence, United States Constitution, Colorado Constitution, court rules, etc.
3. A complete subject index and comparative disposition tables or cross reference indices relating sections of the original 1973 compilation to prior compilations and session laws.
4. The Uniform Commercial Code as a non-statutory inclusion (the Uniform Commercial Code is a set of rules for how commercial contracts and transactions should take place).
5. The arrangement and editing of the Uniform Commercial Code (yep, this is its own point, seriously).
6. Inserted as non-statutory matter, the “Colorado Uniform Limited Partnership Act of 1981″ and the “Revised Uniform Limited Partnership Act.”
7. Inserted as non-statutory matter, the “Colorado Uniform Fraudulent Transfer Act” and the “Uniform Fraudulent Transfer Act.”
8. Comments pertaining to the Uniform Probate Code (wills and trusts) in the appropriate statutes.
9. Inserted as non-statutory matter “Colorado Water for the 21st Century Act.”
10. Inserted as non-statutory matter “Uniform Power of Attorney Act.”
11. Inserted as non-statutory matter “Colorado Probate Code,” as opposed to the model version in section 10.
12. Inserted as non-statutory matter “Uniform Electronic Legal Material.”
PHEW!!! I have not gone to look through a hard copy of the Colorado Revised Statutes to see if there is anything else non-statutory, but I think at this point I am going to take the Colorado Legislature’s word. That is a lot of stuff!!!
Meaning of: “All Original Publications and Editorial Work Ancillary to the Colorado Revised Statutes that are Prepared by the General Assembly or its Staff”
The Colorado Legislature is not making it easy for us. First, they are claiming a copyright to the Colorado Revised Statutes (the copyright filed in 2006 does not appear to be rescinded and appears still valid). Second, in order to figure the “original publications” and “editorial work ancillary” to the statutes themselves (remember this was a second and separate copyright filed in Feb. 2014) we have to wade through Colo. Rev. Stat. § 2–5-102 and potentially more to get to a suitable definition.
Since there is not a definition provided by the Legislature or the courts I am going to find the ordinary meaning.
Anything wholly new, not based upon a prior work, that is first published by the Colorado Legislature or its Staff (because the Colorado Legislature employs the Staff, and under the work for hire doctrine….arrghh!).
I think this reasonably means any new legislation that is not based upon a citizen initiative / proposition. For example, a case could be made that the Colorado Medical Marijuana 2012 statute that the Colorado Legislature filed for copyright protection, may or may not be an “original publication.” The first law was a citizen’s initiative that was passed by the people of Colorado. Any new law that the Legislature writes on its own and is not a derivative of an earlier law (by the citizens or another state) probably will be considered an “original publication.”
“Editorial Work Ancillary”
This is where things get a bit trickier. Since I couldn’t find a definition anywhere, I turned to Merriam Webster (is that common enough?). Ancillary – adjective – providing something additional to a main part or function. Ok, so anything collateral to the the law. The main part of the Colorado Revised Statutes is the state law, so anything else could be considered ancillary. The Colorado Legislature probably did not use the correct copyright terminology here (we’ll cut them some slack because this is not even copyrightable subject matter). Probably a better term other than “editorial work ancillary” would be “compilations and derivative works.” As federal law, the United States Code states:
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
— 17 U.S.C. § 103 (b).
The pre-existing materials could be considered the main part under our Merriam Webster’s ancillary definition, above. Thus, any material contributed by the Colorado Legislature or its Staff (can’t forget the Staff), that is mentioned in Colo. Rev. Stat. § 2–5-102, and not written by someone else previously probably qualifies as “ancillary.”
In the end, none of this really matters.
Again the Colorado Legislature or its Staff’s (can’t forget the staff) work product fits either under the “work for hire” doctrine meaning the Colorado Legislature works for the people of Colorado. Thus the people of Colorado ultimately own’s all of the Colorado Legislature and its Staff’s work product making the copyright null and void.
In the alternative, federal courts have been reluctant to give copyright protections to any level of government (federal, state, local) unless there is a compelling privacy interest. Federal copyright law even carves out an exception stating copyright law does not apply to the federal government and courts have applied that to state and local governments.
Colorado Legislature, please stop wasting time and resources by filing for copyrights that in all practicality will not even stand up in a court of law. Ps. Please learn the industry terms of art, too.
Again, here is screen shot and text from the United States Copyright Office’s website:
|Type of Work:||Text|
|Registration Number / Date:||TX0007830665 / 2014-04-04|
|Application Title:||All original publications and editorial work ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules.|
|Title:||All original publications and editorial work ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules.|
|Copyright Claimant:||State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services. Address: 200 East Colfax Avenue, Room 091, Denver, CO, 80203, United States.|
|Date of Creation:||2013|
|Date of Publication:||2014-02-11|
|Nation of First Publication:||United States|
|Authorship on Application:||State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services, employer for hire; Domicile: United States; Citizenship: United States. Authorship: text, compilation, editing.|
|Previous Registration:||2012, TX 7-668-240.|
|2011, TX 7-540-344.|
|Basis of Claim:||text, compilation, editing.|
|Rights and Permissions:||State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services, 200 East Colfax Avenue, Room 091, Denver, CO, 80203, United States|
|Names:||State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services|