In the absence of expressed congressional guidance or directly controlling Supreme Court precedent, we were left to address -- prudentially -- a wide-open and unresolved question of copyright law: Should the entirety of a privately confected and promulgated model code, access to which has been denied to none, lose its copyright protection in toto, against all the world, solely by virtue of its enactment into law by reference? If Congress or the Supreme Court wishes to strip totally the copyright protection otherwise enjoyed by model codes as an automatic result of being enacted into law, and to justify such emasculation by invoking the doctrines of free speech, due process, merger, or the like, that would be their prerogative. Prudence demands, however, that so large a step beyond all established legal boundaries should not have been taken first by an intermediate appellate court. Indeed,recent appellate case law, congressional pronouncements,and federal agency actions, predict the diametrically opposite result: a discernable trend towards greater governmental adoption of privately created codes with concomitant retention of copyright protection, tempered, of course, by express or implied consent or waiver -- or even fair use -- for those officials, residents, contractors, subcontractors, and design professionals who have a need to view and copy portions of codes to comply with their provisions.
b. Policy Analysis for Copyright Protection
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