This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law but not pure statutory text, from Rome and China to England and America. These historical episodes reveal three lessons of relevance to the debate. First, there is consistent recognition that “the law” is not limited to binding statutory language. Second, exclusivity over nonbinding legal texts such as annotations, whether through copyright or other means, confers undue power on government and the legal profession over the public. Third, annotations and other nonbinding legal texts are historically distinguishable from case reports or private treatises, contrary to the arguments generally proffered by the copyright-claiming states. These lessons militate toward broad exclusion from copyright of state-authored informative legal texts, whether binding or not.
Journal of Intellectual Property and Entertainment Law
May 21, 2020