When is the last time you thought to look up your state’s official code, otherwise known the binding laws on the books that you are expected to abide by? If you live in states other than California, Florida, Massachusetts, or Virginia, trying to get your hands or eyes on a free copy of your state’s legally binding codes may prove to be a difficult task because of copyright protections.
The Patent & Copyright clause appears in Article I, Section 8, Clause 8 of the US Constitution and gives Congress the power, “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” So why is it that the Constitution – and federal law – are free and publicly accessible, while mosts states have the ability to copyright laws that govern their populations? Section 105 of the US Copyright Act states specifically that, “Copyright protection under this title is not available for any work of the United States Government…” meaning that only federal-level laws are not copyrightable. States rely on this loophole to keep their laws copyrighted.
The state that has gotten the most attention for asserting their copyright protections is Georgia. A few years ago, the General Assembly and the State of Georgia filed a civil action against a non-profit for making the Official Code of Georgia Annotated free and publicly accessible. The operator of the non-profit, Public Resource, tried to assert a fair use claim (that permits certain uses of copyrighted works without a license) but, the court determined that he had run afoul of Georgia’s copyright and was ordered to take down the code.
In the case, counsel for the state argued that there was a version of the code that is free and accessible to the public, but the caveat is that it is not binding, is not updated as frequently, and will not prevail over the copyrighted version.
You’d think, in a healthy democracy, governments would want citizens to have access to the laws that govern them, but Georgia is not the only state that claim Copyright protection over their laws. This lack of access can have serious implications for those interacting with legal system, particularly through due process and pro se litigants.
Due process is yet another constitutional protection for citizens that appears in the 5th and 14th Amendments (applicable against federal and state actors, respectively). Basically, this principle asserts that citizens have protection from the federal and state government to be aware of fair & balanced procedures that could legally implicate them, also known as procedural due process. Where is the fairness in a citizen of Alaska not having notice about the laws that apply to them?
Further, pro se litigants, or those who appear in court without a lawyer, are at a severe economic disadvantage when it comes to state laws not being free and readily accessible. Most often than not, people chose to represent themselves in court because the cost of hiring a lawyer would cause an even heavier financial burden atop the court costs. Add to that the cost associated with simply gaining access to a certified copy of their state law just to be able to defend themselves against having violated it. Now the task is near impossible if the pro se litigant’s wallet won’t allow them to access the law that brought them to court in the first place.
The solution to these issues is simple – more states should be like California, Florida, Massachusetts, and Virginia. And as for policy, the Copyright Act should be amended to explicitly exclude state laws from copyright protection. Lawmakers are elected and entrusted to create and change our laws as society progresses. They are not expected to keep their work away from the population at large. Keeping those laws from the people who put them in office is goes against democratic values & ideals.