Cite as 906 F.3d 1229 (11th Cir. 2018)
91 F. 129 (6th Cir. 1898). The Fifth Circuit has extended the rule to encompass regulatory materials. Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.8d 791 (5th Cir. 2002) (en banc). However, other courts have declined to extend the rule in other, related contexts. See, e.g., CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994) (declining to apply the rule to a privately prepared listing of automobile values that several states required insurance companies to use in calculating insurance payouts); Practice Mgmt. Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516 (9th Cir. 1997), amended, 133 F.3d 1140 (9th Cir. 1998) (declining to apply the rule to a privately authored coding system that was incorporated into a government reimbursement scheme through publication in the Federal Register); Cty. of Suffolk v. First Am. Real Estate Sols., 261 F.3d 179, 193 (2d Cir. 2001) (declining to apply the rule to tax maps created by a county assessor’s office); John G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F.3d 26 (1st Cir. 2003) (declining to apply the rule to the terms of a restrictive covenant a town entered into as part of a zoning scheme).
It is also worth observing that Congress has partially codified the rule announced in Banks. Specifically, the 1909 version of the Copyright Act provided that “no copyright shall subsist in the original text of any work which is in the public domain… or in any publication of the United States Government, or any reprint, in whole or in part, thereof.” 17 U.S.C. § 8 (repealed 1976). This prohibition persists under current copyright law, enacted in 1976, which, in turn, provides that “[c]opyright protection under this title is not available for any work of the United States Government.” 17 U.S.C. § 105. This partial codification of Banks for works created by the federal government leaves unmodified the rule as it applies to works created by the states. As the Copyright Office’s 1961 Register’s Report stated, even though Congress enacted a prohibition that only applies to the federal government, “the judicially established rule [] still prevent[s] copyright in the text of state laws, municipal ordinances, court decisions, and similar official documents.” 1961 Register’s Report, at 129–30.
Although case precedent and congressional enactments have long established the rule that government works are not copyrightable, the foundations of the rule are generally implicit and unstated. Since the Court in Banks was not especially clear about the legal source of the rule it had announced and since the issue has not been raised before in our Court, we start with a relatively clean canvas. What is clear, however, is that the rule enunciated in Banks was grounded on the Court’s interpretation of the term “author” in the Copyright Act of 1790, that works created by courts in the performance of their official duties did not belong to the judges, and that public policy compelled the conclusion that these works were in the public domain and uncopyrightable.
Thus, we understand the rule in Banks to derive from first principles about the nature of law in our democracy. Under democratic rule, the People are sovereign, they govern themselves through their legislative and judicial representatives, and they are ultimately the source of our law. Under this arrangement, lawmakers and judges are draftsmen of the law, exercising delegated authority, and acting as servants of the People, and whatever they produce the People are the true authors. When the legislative or judicial chords are plucked it is in fact the People’s voice that is heard. Not surprisingly, then, for purposes of copyright law, this means that the People, as the constructive authors are also the owners of the law. And in this way, any
