Note: Copyrighted Laws: Enabling and Preserving Access to Incorporated Private Standards

By James M. Sweeney. Full text here.

Traditional laws—statutes, judicial opinions, and regulations—are not eligible for copyright protection. This principle is firmly established in over one hundred years of case law, despite the Copyright Code not expressly addressing the eligibility of laws. This has caused little controversy. In the last few decades, however, federal agencies have increasingly given legal force to privately authored copyrighted works by incorporating them verbatim by reference into regulations. The authors of those works continue to exercise their exclusive right to control reproduction and distribution by charging the compliance-seeking public fees to obtain transfer-restricted copies. Concealing legal obligations from the public and controlling access to them with fees and threats of litigation raises significant concerns. This practice does not fit within the case-law analysis of traditional laws because incorporated private standards are copyrighted works that later obtain legal force.

With little case law on point and silence from the Copyright Code, this Note examines whether any other copyright doctrines can be used to enable public access to copyrighted works that are subsequently given legal force. This Note argues that none of the proposed copyright doctrines would prevent incorporated copyrighted works from maintaining their copyright. This Note proposes a two-part legislative solution that adds laws to the Copyright Code’s subject-matter exclusions and provides a special section for neutralizing the copyright of private works that are subsequently given legal force.