Public Domain Laws

Public Domain Laws in the United States

Free Availability of State Law

It has been established in American law for nearly two centuries that public law is not subject to any party’s exclusive control, and must remain public as a matter of due process.

  • In Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834): “no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right”;
  • In Banks v. Manchester, 128 U.S. 244, 253 (1888): “The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute”.

Originally established with regard to judicial decisions, this principle applies with equal force to all other aspects of public law, including regulations promulgated by state agencies. In 1866, the federal Circuit
Court for Minnesota, in Davidson v. Wheelock, 27 F. 61 (1866), decreed that state statutes were not subject to any proprietary interest:

“[The complainants] obtained no exclusive right to print and publish and sell the laws of the state of Minnesota, or any number of legislative acts. . . . such compiler could obtain no copyright for the publication of the laws only; neither could the legislature confer any such exclusive privilege upon him.”

The Supreme Judicial Court of Massachusetts similarly concluded, in Nash v. Lathrop, 142 Mass. 29, 35 (1886), that
judicial decisions and legislative enactments are of the same essence, for purposes of requiring public access:

“The decisions and opinions of the justices are the authorized expositions and interpretations of the laws, which are binding upon all the citizens. They declare the unwritten law, and construe and declare the meaning of the statutes. Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice
requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices. Such opinions stand, upon principle, on substantially the same footing as the statutes enacted by the legislature.”

Free access to state law necessarily includes freedom to publish or republish, even by copying from the sole “authorized” publisher. In Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) “any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual”. That the “book” used as a source of public law may be electronic rather than “printed” cannot change the underlying principles.

The Fifth Circuit has made it clear, in Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791, 800 (5th Cir. 2002), that same principle of free access must apply even to regulatory codes that are written and promulgated
by private organizations, and merely adopted by the pertinent governmental authority:

“[W]e hold that when Veeck copied only “the law” of Anna and Savoy, Texas, which he obtained from SBCCI’s publication, and when he reprinted only “the law” of those municipalities, he did not infringe SBCCI’s copyrights in its model building codes. The basic proposition was stated by Justice Harlan, writing for the Sixth Circuit:
“any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book … (Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898))”.

The Supreme Court of Georgia is in accord. In Harrison Co. v. Code Revision Commission, 244 Ga. 325 (1979), the Court considered the effect of a contract between Georgia’s Code Revision Commission and The Michie Company, pursuant to which Michie was granted “the exclusive right to distribute and sell sets and volumes of the Code for a 10 year period extending from the date of the initial publication of the Code, as well as the exclusive right to publish annual supplements and periodic replacement volumes to the Code for the same 10 year period.” (244 Ga. at 329).

The Court concluded:

“The exclusive right referred to is the exclusive right to publish the “Official Code of Georgia Annotated,” the copyright for which will be in the name of the state. Both Michie and the state, however correctly concede that this provision does not prevent Harrison from publishing a competitive product; i.e., a Code with annotations by Harrison. As was said in Davidson v. Wheelock, 27 F. 61 (D.Minn. 1866), a state’s laws are public records open to inspection, digesting and compiling by anyone. Michie is not being given an exclusive franchise as to the
publication of laws in Georgia.”

While law should not be subject to copyright, some vendors (such as Casemaker), however, asserted the right to claim copyright in any copyrightable materials, electronic files, data, source code and/or anything in addition to the statutory text and numbering in the content of the site(s).

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15 responses to “Public Domain Laws”

  1. International Avatar
    International

    JohnHarold

    I have some questions about the public domain. Maybe someone here knows the answer(s)?

    It’s my understanding (based on scant research) that the term “public domain” was originally applied to “land and water in possession of and owned by the United States and the states individually, as distinguished from lands privately owned by individuals or corporations.” Black’s Law Dictionary 1229 (6th ed. 1990).

    1. When was the term “public domain” first applied to the law of intellectual property?

    2. When (or how) did the term acquire the distinctive meaning it now has in that context?

    3. Is the public domain simply a byproduct of copyright law, or can it be conceived as in some way analogous to, e.g., “certain unalienable rights” which (on some accounts) pre-exist the state or any positive law?

    4. Should the meaning of the term be informed by its roots in property doctrine? (I.e., in the case of “public domain” land, it is not free for the taking, but rather owned and controlled by the government.)

    As an aside, I suspect some or all of these questions are answered in the book “Copyright and the Public Domain” by Stephen Fishman (which the estimable William Patry called “an amazing 724-page scholarly treatment of the subject”), but I can’t afford it, and the questions have never become so pressing that I’ve felt the need to access it via inter-library loan.

  2. International Avatar
    International

    JohnHarold

    I have some questions about the public domain. Maybe someone here knows the answer(s)?

    It’s my understanding (based on scant research) that the term “public domain” was originally applied to “land and water in possession of and owned by the United States and the states individually, as distinguished from lands privately owned by individuals or corporations.” Black’s Law Dictionary 1229 (6th ed. 1990).

    1. When was the term “public domain” first applied to the law of intellectual property?

    2. When (or how) did the term acquire the distinctive meaning it now has in that context?

    3. Is the public domain simply a byproduct of copyright law, or can it be conceived as in some way analogous to, e.g., “certain unalienable rights” which (on some accounts) pre-exist the state or any positive law?

    4. Should the meaning of the term be informed by its roots in property doctrine? (I.e., in the case of “public domain” land, it is not free for the taking, but rather owned and controlled by the government.)

    As an aside, I suspect some or all of these questions are answered in the book “Copyright and the Public Domain” by Stephen Fishman (which the estimable William Patry called “an amazing 724-page scholarly treatment of the subject”), but I can’t afford it, and the questions have never become so pressing that I’ve felt the need to access it via inter-library loan.

  3. International Avatar
    International

    Start with this: prior to 1622, there was no copyright in the English legal system. Copyright as we know it didn’t really come into being until 1710. But prior to 1622, creative expression was free for the taking.

    That’s the “public domain.” However, that term wasn’t used in connection with copyright law until much later (roughly the mid-1800s). Instead, that was the default rule. The copyright act gave authors a period of 14 years in which to enjoy the fruit of their work. After that point, it was fair game.

    The term “public domain” comes from a French poet who referred to the expiration of copyright as having his work “fall into the sink hole of the public domain.” That said, the idea (property available for the public as a whole) has its roots in Roman law.

    Copyright is not, and was not, viewed as an inalienable property right. It wasn’t viewed as a natural right either. It took an act of Parliament to protect expression from copying. Viewing copyright as analogous to natural property rights is an error. Unlike the Natural Law concept of Property Rights, copyright is purely a creation of positive law.

  4. International Avatar
    International

    Start with this: prior to 1622, there was no copyright in the English legal system. Copyright as we know it didn’t really come into being until 1710. But prior to 1622, creative expression was free for the taking.

    That’s the “public domain.” However, that term wasn’t used in connection with copyright law until much later (roughly the mid-1800s). Instead, that was the default rule. The copyright act gave authors a period of 14 years in which to enjoy the fruit of their work. After that point, it was fair game.

    The term “public domain” comes from a French poet who referred to the expiration of copyright as having his work “fall into the sink hole of the public domain.” That said, the idea (property available for the public as a whole) has its roots in Roman law.

    Copyright is not, and was not, viewed as an inalienable property right. It wasn’t viewed as a natural right either. It took an act of Parliament to protect expression from copying. Viewing copyright as analogous to natural property rights is an error. Unlike the Natural Law concept of Property Rights, copyright is purely a creation of positive law.

  5. International Avatar
    International

    The question is whether works so old that everyone knows them should remain off-limits for reuse/improvement for centuries just because Walt Disney’s heirs have lobbyists with bags of bribe money.

    (Super-long copyrights would be a lot less objectionable, to me at least, if after a few years the right to forbid either re-publication or derived works were to disappear, leaving only the right to collect a standard royalty similar to the “mechanical licenses” for music in present law.)

    The entitlement mentality goes both ways. And there’s a reason the Constitution spells out “for limited times.” Eldred should rightfully have won his case on all counts.

  6. International Avatar
    International

    The question is whether works so old that everyone knows them should remain off-limits for reuse/improvement for centuries just because Walt Disney’s heirs have lobbyists with bags of bribe money.

    (Super-long copyrights would be a lot less objectionable, to me at least, if after a few years the right to forbid either re-publication or derived works were to disappear, leaving only the right to collect a standard royalty similar to the “mechanical licenses” for music in present law.)

    The entitlement mentality goes both ways. And there’s a reason the Constitution spells out “for limited times.” Eldred should rightfully have won his case on all counts.

  7. International Avatar
    International

    Symphony orchestras and opera houses all over the world are shamelessly performing the works of Wolfgang Amadeus Mozart (1756-1791) without compensating the Mozart family. This entitlement mentality has truly run amok.

  8. International Avatar
    International

    Prior to the Copyright Act of 1909, copyrights in the United States lasted 28 years and could be renewed for an additional 14 years. The Copyright Act of 1909 extended the renewal term to 28 years. Under existing law at the time, works published in his last year of life, 1930, would have had copyright protection to 1958, which could have been renewed to 1986. Sir Arthur Conan Doyle had no expectation of his 1930 writings’ U.S. copyright extending past 1986. The problem is the shameless entitlement mentality of the heirs or estate of Sir Arthur Conan Doyle, but more important, the shameless entitlement mentality of Disney and other corporations, to repeatedly claw back what should have entered the public domain years ago.

    Steamboat Willy was made in 1928. Walt Disney had no expectation that his 1928 rodent would be under copyright after 1984. Just as classical music of centuries past entered the public domain long ago, popular culture of the 1920s should have entered the public domain long ago.

  9. International Avatar
    International

    Prior to the Copyright Act of 1909, copyrights in the United States lasted 28 years and could be renewed for an additional 14 years. The Copyright Act of 1909 extended the renewal term to 28 years. Under existing law at the time, works published in his last year of life, 1930, would have had copyright protection to 1958, which could have been renewed to 1986. Sir Arthur Conan Doyle had no expectation of his 1930 writings’ U.S. copyright extending past 1986. The problem is the shameless entitlement mentality of the heirs or estate of Sir Arthur Conan Doyle, but more important, the shameless entitlement mentality of Disney and other corporations, to repeatedly claw back what should have entered the public domain years ago.

    Steamboat Willy was made in 1928. Walt Disney had no expectation that his 1928 rodent would be under copyright after 1984. Just as classical music of centuries past entered the public domain long ago, popular culture of the 1920s should have entered the public domain long ago.

  10. International Avatar
    International

    The Statute of Anne was passed in 1710, predating Mozart by 46 years.

    But since copyright is a purely statutory right, and a species of right different from other real and personal property rights, it’s entirely fair that it should be treated differently. That treatment is that the rights lapse into the public domain such that anyone can use them after a set term.

  11. International Avatar
    International

    The Statute of Anne was passed in 1710, predating Mozart by 46 years.

    But since copyright is a purely statutory right, and a species of right different from other real and personal property rights, it’s entirely fair that it should be treated differently. That treatment is that the rights lapse into the public domain such that anyone can use them after a set term.

  12. International Avatar
    International

    Copyrights, of Constitutional necessity, are for limited times. You only own the right of exclusivity until a particular time, exclusivity beyond that is not yours to give. Whenever Congress extends the limits, they are in essense redistributing wealth by giving new property rights to holders of current copyrights for free.

  13. International Avatar
    International

    Copyrights, of Constitutional necessity, are for limited times. You only own the right of exclusivity until a particular time, exclusivity beyond that is not yours to give. Whenever Congress extends the limits, they are in essense redistributing wealth by giving new property rights to holders of current copyrights for free.

  14. International Avatar
    International

    Fortunately, the law of intellectual property is not thrust upon us without history. It shows that intellectual property was not treated like tangible personal property or real property until about the time this Nation was Founded. Indeed, it required a specific Act of Congress to allow copyrights to pass to heirs.

  15. International Avatar
    International

    Fortunately, the law of intellectual property is not thrust upon us without history. It shows that intellectual property was not treated like tangible personal property or real property until about the time this Nation was Founded. Indeed, it required a specific Act of Congress to allow copyrights to pass to heirs.

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