Tag Archives: fair use

Colorado Legislature’s Claim Right to Copyright All Work Product

Apparently, as I am slowly finding out, anything that the Colorado Legislature produces they believe is their own work product.  Often times they even go so far as to file official copyrights with the United States Copyright Office in Washington D.C. (as I will show verification of this later).  Because the legislature believes that it owns the copyright to documentation it produces it sets arbitrary limits on reproduction, distribution, etc.

I want to place a complete and up-to-date version of the Colorado Revised Statutes on this website.  However, yesterday the Legislature told me over the phone that the only way I could reprint a copy of the Colorado Revised Statutes would be to purchase them through LexisNexis.  There are two problems with this: 1. LexisNexis uses DRM which restricts copying, printing, and sharing of their digital material; and 2. Their Ebook of the Colorado Revised Statutes sells for $298.

Through a little digging this morning it turns out that the Colorado Legislature and LexisNexis jointly filed for a copyright on the Colorado Revised Statutes.  Below is a screen shot taken directly from the Copyright Office’s searchable database.

Colorado Legislature and LexisNexis copyright of Colorado Revised Statutes
Colorado Legislature and LexisNexis copyright of Colorado Revised Statutes

Here is the text in case you can’t see it from my screen shot:

Type of Work: Text
Registration Number / Date: TX0006466393 / 2006-11-24
Title: Colorado revised statutes.
Edition: 2006 ed., Softbound ed.
Notes: Includes tables, index & CD-ROM.
Copyright Claimant: Committee on Legal Services for the state of Colorado
Date of Creation: 2006
Date of Publication: 2006-08-28
Authorship on Application: Matthew Bender & Company, Inc., employer for hire.
Previous Registration: Prev. reg.
Basis of Claim: New Matter: editorial additions & revisions.
Copyright Note: Cataloged from appl. only.
Names: Committee on Legal Services
Colorado
Matthew Bender & Company, Inc.
Colorado. Committee on Legal Services

The Colorado Committee on Legal Services is the organization where I sent my open records request yesterday.  Matthew Bender is a subsidiary of LexisNexis.  So legally, both the Colorado Legislature and LexisNexis equally assert a copyright claim over the Colorado Revised Statutes.

Copyrights

Let’s back up the train a little bit and explain copyright law before we get into Colorado’s claims in depth. In order to understand if Colorado has a valid copyright claim, we need to understand the federal copyright law first.

“Copyright is a form of protection provided by the laws of the United States (title 17 U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works.”  That statement comes from the United States Government Copyright Office, Copyright Basics.  In other words, copyright gives a property interest to people who create new stuff.  They get to own the rights to their new stuff for a certain period of time, and they can place all sorts of restrictions on what can be done to it.  You made it, you get to decide what get’s done with it for a limited time (copyrights only last a certain number of years).

Ok, that is kinda simple.  How do they determine who owns the copyright?

One way is the “work for hire” doctrine. The Copyright Office explains:

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:

1. a work prepared by an employee within the scope of his or her employment; or

2. a work specially ordered or commissioned for use as:  • a contribution to a collective work. • a part of a motion picture or other audiovisual work. • a translation. • a supplementary work. • a compilation. • an instructional text • a test • answer material for a test • an atlas

The Colorado Legislature’s work on the Colorado Revised Statute fits neatly within the definition provided in “work for hire.”  Each legislator is hired by the public.  The legislator is paid out of public funds, taxes.  The scope of the legislator’s employment includes drafting and voting on legislation, ideally that is in the public’s interest.

Let’s think of it another way.  For argument’s sake, let’s say I am hired by the Denver Post to write an opinion piece about how incredibly arrogant it is that the Colorado Legislature thinks it owns the law.  The Denver Post and I enter into a formal employment relationship.  The Denver Post says it will pay me for my work.  The Denver Post says it hires me to specifically write on this topic for them.  Just like the Colorado Legislature is hired to write and pass laws for the people of Colorado — not the people of Nebraska, but Colorado.  Then let’s say the New York Times calls me up and says they think I am fabulous.  They want to exclusively publish my articles about how incredibly arrogant it is that the Colorado Legislature thinks it owns the law.  I enter into an exclusive contract with the New York Times.  While my work is originally for the Denver Post, the New York Times is reaping the financial rewards of my hard work.

This idea is just common sense.  If someone hires you to do a job, you personally don’t own the copyright, nor can you sell it.  Your employer paid for your work and owns your work product.

The second concept relates back to the “work for hire” doctrine. It is the United States Government exception to claim a copyright.

The United States Government by federal law cannot claim a copyright to any materials prepared in during the scope of the employment.  17 U.S.C.§ 105.

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

It is clearly laid out by the statute the United States Government cannot claim a copyright interest.  What is not mentioned in the text of the statute are state and local governments.  What about their work product?  Can they claim a copyright interest in it? — Like Colorado so clearly has done.

The courts have weighed in on municipal building codes as not being copyrightable.

Lawmaking bodies in this country enact rules and regulations only with the consent of the governed. The very process of lawmaking demands and incorporates contributions by “the people,” in an infinite variety of individual and organizational capacities…In performing their function, the lawmakers represent the public will, and the public are the final “authors” of the law.

Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d 791, 799 (5th Cir. 2005) (en banc).

The Fifth Circuit Court of Appeals is basically applying the work for hire doctrine to the government.  The government works for the people, thus the people are the owners of the work product.

Furthermore, there has to be material changes to a governmental work by a non-governmental actor to qualify for copyright protection.  Du Puy v. Post Telegram Co., 210 F. 883 (3rd Cir. 1914) (describing a claim made about a bulletin made by an employee of the Bureau of Education containing Peace Day program suggested for use in the schools).  The court said you can’t change a sentence here and there and call it your own.  The majority of what is written has to be new.

A court went so far as to say some military documents are not-copyrightable and are in the public domain.  Eggers v. Sun Sales Corp., 263 F. 373, 374-75 (2nd Cir. 1920) (holding General Pershing’s official report “could not be copyrighted“).

The government can still restrict usage of its work product in limited exceptions.

The government is allowed to withhold documents is if there is a strong privacy interest at stake. Defendants did not have the right to the Multistate Bar Exam (part of the licensing test for attorneys).  National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 38 (N.D. of Ill. 1980). “To adopt the defendant’s version of § 704(d) also would make the Copyright Act unavailable for protecting a secure test.” I think that is fair.  To protect the integrity of the exam, the government does not have to make it public.  The government has an interest in making sure only qualified persons receive licenses, so that interest outweighs the public’s right to know.

Another instance is if you sign an employment contract giving up the right to your work product.  Pfeiffer v. CIA, 60 F.3d 861 (D.C. Cir. 1995) (holding a CIA Historian’s research into the Bay of Pig, while employed by the CIA, could not take the research with him after his retirement because of his employment contract with the CIA).  However the court went on to say, “Of course, we express no view upon the question whether a third-party who copies a government document, such as a journalist presumably unencumbered by the ‘extremely high degree of trust’ invested in an employee of the CIA, could likewise be required to relinquish it.”  Pfeiffer v. CIA, 60 F.3d 861, 865 (D.C. Cir. 1995).  The Court says the employee gave up the right to take documents with him from the CIA. Whether the documents should be made public would be a completely different analysis if a private citizen not associated with the CIA filed a Freedom of Information Act request (FOIA).

Here, in my case, in Colorado, none of the exceptions to the copyright rule apply.  First, there is not a privacy interest in keeping the Colorado Revised Statutes secret.  In fact, the common law would tell us otherwise with: ignorance is not an excuse of the law.  If we are expected to know the law, by the courts, then common sense would say that the state statutes, or the law should be made as available as possible to give everyone to be free of ignorance.  Second, I do not currently, nor have I ever worked for the Colorado Legislature, so there is not even a remote possibility that I gave up my right to request the statutes.

Colorado’s Statutory Claim to Copyright

I think the copyright law is pretty clear that it is bad policy / bad law that the Colorado Legislature claims a copyright over the Colorado Revised Statutes.  The statutes should be in the public domain.  I hope the Colorado Legislature removes this bad law:

First. Colo. Rev. Stat. § 2-5-115 – Copyright by State [Colorado] (2013)

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. (emphasis added).

This first statute sets out in the title the assertion that the state owns the copyright to the Colorado Revised Statutes.

Second. Colo. Rev. Stat. § 2-5-118 (2) (2013)

(2) (a) Any person, agency, or political subdivision desiring to publish, reprint, or distribute, whether by use of printed matter or by use of computer or other electronic means, the statutes of the state of Colorado using the statutory database prepared by the general assembly or its staff containing the official text of the statutes, shall submit to the committee or the committee’s designee:
(I) A statement specifying those portions of the statutes the person, agency, or political subdivision seeks to publish;
(II) A statement specifying whether the person, agency, or political subdivision is seeking to publish, reprint, or distribute any of the publications ancillary to the statutes as prepared by the general assembly or its staff pursuant to subsection (2.5) of this section;
(III) The costs and fees required by the committee as specified in paragraph (c) of this
subsection (2); and
(IV) Such other information as the committee reasonably requires. (emphasis add).

So let me get this straight, Colorado Legislature.  If I want to go in and print or redistribute the “statutes of the state of Colorado” using the state government’s database then I have to submit information that the agency reasonably requires.  What does that mean?  Do they want a background check to see if I am a felon?  Do they want a full health report to screen me for any pre-existing conditions before letting me use their database?  Or merely, does the committee want to see my voting record?

Third. Colo. Rev. Stat. § 2-5-118 (2.5) (2013)

(a) Any person, agency, or political subdivision desiring to publish, reprint, or distribute, whether by use of printed matter or by use of computer or other electronic means, any of the publications ancillary to the statutes of the state of Colorado shall make prior written application to the committee, in which the applicant:
(I) Specifies what ancillary publications it seeks to publish;
(II) States generally the purpose for the publication, reprinting, or distribution and the persons or classes of persons to receive copies thereof;
(III) Demonstrates to the satisfaction of the committee that such ancillary publications will be accurately reproduced; and
(IV) Agrees to pay the costs and fees required by the committee. (emphasis added).

This says pretty much the same thing as the section above, but it leaves out the whole database part.  If I want to redistribute everything, I have to go through the “Colorado Inquisition.”

Fourth. Colo. Rev. Stat. § 2-5-118 (6) (2013)

Notwithstanding any other provision of this section to the contrary, a person, agency, or
political subdivision may publish, reprint, or distribute two hundred or fewer sections of
the Colorado Revised Statutes, with or without the ancillary publications thereto, for
educational purposes. (emphasis added).

So there is an express limitation on what I can reproduce great!

 

Thanks for looking out for the people, Colorado Legislature!