Transcript Standard Setting in High

Class 7
Copyright, Winter, 2014
Governmental Works
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
773.702.0864/[email protected]
Copyright © 2005-14 Randal C. Picker. All Rights Reserved.
105. Subject matter of copyright

United States Government works
Copyright
protection under this title is not
available for any work of the United States
Government, but the United States Government is
not precluded from receiving and holding
copyrights transferred to it by assignment,
bequest, or otherwise.
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101

A “work of the United States government” is
a
work prepared by an officer or employee of the
United States Government as part of that person’s
official duties
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The New U.S. Public Domain

Visiting the Supreme Court
www.supremecourt.gov

Visiting Congress
www.congress.gov
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1990 Copyright Remedy
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Clarification Act
Situating States in U.S. Copyright

Section 501(a):
(a)
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Anyone who violates any of the exclusive
rights of the copyright owner as provided by
sections 106 through 122 or of the author as
provided in section 106A(a), or who imports
copies or phonorecords into the United States in
violation of section 602, is an infringer of the
copyright or right of the author, as the case may
be.
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Situating States in U.S. Copyright

Section 501(a):
…
As used in this subsection, the term “anyone”
includes any State, any instrumentality of a State,
and any officer or employee of a State or
instrumentality of a State acting in his or her
official capacity.
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Situating States in U.S. Copyright

Section 501(a):
Any
State, and any such instrumentality, officer, or
employee, shall be subject to the provisions of this
title in the same manner and to the same extent
as any nongovernmental entity.
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Situating States in U.S. Copyright

Sec. 511(a):
Any
State, any instrumentality of a State, and any
officer or employee of a State or instrumentality of
a State acting in his or her official capacity, shall
not be immune, under the Eleventh Amendment of
the Constitution of the United States or under any
other doctrine of sovereign immunity, from suit in
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Situating States in U.S. Copyright

Sec. 511(a):
Federal
Court by any person, including any
governmental or nongovernmental entity, for a
violation of any of the exclusive rights of a
copyright owner provided by sections 106 through
122, for importing copies of phonorecords in
violation of section 602, or for any other violation
under this title.
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Situating States in U.S. Copyright

But …
Status
of CRCA pretty uncertain, see, e.g.,
National Ass’n of Boards of Pharmacy v. Board of
Regents of the University System of Georgia, 633
F.3d 1297 (11th Cir. 2011)
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Veeck

Core Facts
SBCCI
drafts model building codes
Codes are copyrighted
Veeck pays $72.00 to SBCCI for CDs with
building codes
Licensing agreement and copyright notice bar
copying and distribution
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Veeck
Veeck
posts on building codes of two Texas
towns on his website
SBCCI asks him to stop
Veeck files declaratory judgment action
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Understanding the Supreme
Court Precedent

Wheaton v. Peters (1834)
Separated
reporter’s work from judicial opinions
Latter not copyrightable, tracking assumption that
statutes aren’t copyrightable
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The Nature of the Text or the
Author

Questions
Should
we understand these to be decisions
about the nature of law?
Or are these cases about federally-paid authors?
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Consequences of Enactment

Law As Fact
Does
gov’t enactment of SBCCI’s model law turn
it into a fact?

Merger
Does
gov’t enactment of SBCCI’s model law
implicate the merger doctrine?
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Consequences of Enactment

Taking?
When
would a government enactment constitute a
taking? With what consequences?
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