Cite as 906 F.3d 1229 (11th Cir. 2018)
The court went on to explain that its holding rested on a deeper principle, a “metaphorical concept of citizen authorship.” Id. at 799. As the court reasoned, “[l]awmaking bodies in this country enact rules and regulations only with the consent of the governed. The very process of lawmaking demands and incorporates contributions by ‘the people,’ in an infinite variety of individual and organizational capacities… In performing their function, the lawmakers represent the public will, and the public are the final ‘authors’ of the law.” Id. The court discerned that there are strong public policy interests in giving the public unfettered access to the law. “[P]ublic ownership of the law means precisely that ‘the law’ is in the ‘public domain’ for whatever use the citizens choose to make of it. Citizens may reproduce copies of the law for many purposes, not only to guide their actions but to influence future legislation, educate their neighborhood association, or simply to amuse.” Id. Thus, the “metaphorical concept of citizen authorship together with the need for citizens to have free access to the laws are the ultimate holding of Banks.” Id. (quotation omitted).
The First Circuit has also emphasized popular sovereignty as being foundational to its understanding of the rule announced in Banks. In Building Officials & Code Administrators v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980), the court considered, on an interlocutory appeal challenging the issue of a preliminary injunction, a copyright infringement suit brought by the private sector author of a model building code against a publisher of the Massachusetts building code, which the Massachusetts legislature had based in large measure on the model code. The court ruled that the inclusion of the otherwise copyrightable model building code in the official Massachusetts building code likely rendered those materials, just like the rest of the materials in the Massachusetts building code, “freely available for copying by anyone.” Id. at 732.
After reviewing case precedent going as far back as Wheaton, a panel of the First Circuit asserted that “[t]he law thus seems clear that judicial opinions and statutes are in the public domain and are not subject to copyright.” Id. at 734. The court reasoned that this principle extends to regulatory codes as much as it does to statutes and judicial opinions. While acknowledging that cases like Banks and Wheaton seemed to rest in part on the identity of the creators of the works in question, namely salaried public officials performing official duties, it explained that a more fundamental principle was at work. In particular, “citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.” Id. The reason why judges and legislators cannot copyright works they create, was not because they are working for the government rather than for themselves, but rather because of a “metaphorical concept of citizen authorship,” which means that, once it adopts a text as law, the body politic becomes the author of the work in question, leaving the original drafter with no proprietary interest. Id. The court reasoned that this was true even where the original creator of the work was a private sector actor.[1]
- ↑ It is also worth observing that rooting Banks in this understanding of sovereignty helps make the rule congruent with other, closely related copyright doctrines. The work-for-hire doctrine, as well as § 105 -- the partial codification of Banks -- are both operationalized by identifying a master-servant relationship and attributing authorship to the master. See, e.g., Comty. For Creative Non-
