A decision earlier this month by the Eleventh Circuit United States Courts Of Appeals goes further than other modern courts in describing that building codes when adopted by local government cannot be copyrighted.

Ruling that “the law,” whether by statute, ordinance, regulations, or code, and even when its source is a judicial opinion, is not subject to federal copyright law, has broad implications, particularly for green building.

And it is not new law that government’s building codes are unprotectible under copyright law, although not all courts have been universally consistent across the country, but this federal appellate court’s rationale has implications for all building codes, and not just for the new 2018 IgCC being released next month, but also for LEED where compliance with the private rating system is made a requirement by law.

To appreciate the importance of this court ruling, by way of example, as the organizational author of original works, the U.S. Green Building Council indisputably holds a copyright in its LEED rating systems. See 17 U.S.C. § 102(a). The question might be if a person infringes on USGBC’s copyright if they post the LEED rating system online? Put another way, does USGBC retain the right wholly to exclude others from copying the rating systems after and to the extent to which they are adopted as “the law” of various jurisdictions? The answer to this narrow issue, while debated in the past, seems compelled by this new decision, that was actually about a private party’s annotations to the legislature’s enacted law.

Excluding “the law” from the purview of the copyright statutes dates back to this nation’s earliest period. In 1834, the Supreme Court in Wheaton v. Peters interpreted the first federal copyright laws and unanimously held that “no reporter has or can have any copyright in the written opinions delivered by this Court …” That decision was the foundation of our continuing understanding that “the law,” whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright. Courts have applied that still governing law to rule that the building codes of various governments from Massachusetts to Texas cannot be copyrighted. But in recent years, some courts have sought to distinguish cases from that bedrock law.

And such is why this new decision from the Eleventh Circuit is so important.

It uses an untrammeled and broader rationale, “.. confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives” to hold that no valid copyright interest can be asserted in any part of a code adopted by government.

The court provides a fundamental lesson in American history when it explains, the United States Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, Sec. 8, cl. 8. Congress has exercised this power by passing what is described as the single most important law in American history, the Copyright Act. 17 U.S.C. § 101, et seq.

Copyright protection subsists .. in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. § 102.

That is, “authorship” is central to copyright law. Only “original works of authorship” are eligible for copyright protection.

The court explains that the meaning of authorship takes on special significance in instances like this where we consider the copyrightability of a government edict. A long line of judicial authority, stretching back more than 180 years, establishes that, with respect to certain governmental works, the term “author” should be construed to mean “the People,” so that the general public is treated as the owner of the work.

The metaphorical concept of citizen authorship actually dates to James Madison’s government as “the public voice” in Federalist No. 10, as he argued for the ratification of the United States Constitution.

The “rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law.” This is a true today as it was in 1787.

The 2014 confidential agreement signed by ICC, ASHRAE, the American Institute of Architects, the IES, and the USGBC “to collaborate on the development of future versions of Standard 189.1, the IgCC and the LEED green building program,” does not defeat the foundational American law concept that the people are the authors when writings are adopted as the law by governments. Moreover, existing only as a creature of standards, rating systems and codes, green building is particularly vulnerable to this decision.

And answering the question posed above, to its credit the USGBC has long ago addressed this issue when the LEED Terms and Conditions includes,

“Permission is hereby granted to those wishing to use, reproduce, and/or display all or any portion of any LEED® Rating System appearing on the USGBC website in the form of a limited, royalty-free, nonexclusive, revocable license, so long as the user attributes the permission of and authorship and copyright to the U.S. Green Building Council, Inc. in any such use, reproduction, and/or display.”

This blog post does Not suggest that anyone violate a claimed copyright on a code or otherwise, but it is time the green building industrial complex reconsider how green building standards, rating systems and codes are developed and managed.

This case is Code Revision Commission v. Public Resource Org, Inc. In the United States Courts Of Appeals for the Eleventh Circuit, No. 17-11589, filed October 19, 2018.