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Under the Umbrella: Promoting Public Access to the Law

Jones, D. R., Under the Umbrella: Promoting Public Access to the Law (October 16, 2021). Journal of Intellectual Property Law, Vol. 29, No. 1, 2021, Forthcoming, Available at SSRN:

“People need to know the law and have access to the law. Allowing copyright claims in “the law” can lead to severe restrictions on public knowledge and access. This article reviews court decisions spanning three centuries that have upheld the people’s needs over the proprietary rights of copyright holders. The review includes a discussion and analysis of three recent decisions that are under the umbrella of the principle that members of the public need unfettered access to the law. The Supreme Court in Georgia v. Public.Resource.Org. reaffirmed and further refined the government edicts doctrine which holds that government edicts are not copyrightable. While this decision was important for ensuring access to the law, it did not address all circumstances. The decision in International Code Council v. UpCodes considered the status of model codes adopted into law. It was the first decision to consider the application of the holding in Georgia v. Public.Resource.Org. to privately created works adopted into law. Meanwhile, the decision in American Society for Testing and Materials v. Public.Resource.Org. addressed how fair use could apply to privately drafted standards that have been incorporated into law. In addition to exploring and assessing these recent decisions, this article undertakes a deeper review of historical decisions that supported access to the law by overriding copyright claims. Included is a review of documents that reveal an additional player and facts in the Banks v. Manchester litigation. The article also discusses open issues and concerns regarding whether “the law” can be copyrighted. The article asserts that supporting unfettered access to the law and the public benefits that flow therefrom should outweigh copyright concerns.”

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