If a U.S. jurisdiction secedes, can they still keep the old laws?

Question

I've heard that most municipal code is actually copyrighted material, thus, for example, you can't just re-publish it without violating the copyright law.

The issue becomes interesting in the case of secession. If, say, a California or Colorado county, city or a set of such were to secede from the rest of the State, or from an existing county or city within the State, do they have to start their legal framework pretty much from scratch, could they reference prior state/county/city law as of date of secession, or do they somehow get some kind of a special right to the collection of statutes? Can the old jurisdiction prohibit such access?

From the copyright perspective, would it at all be easier for a state to secede (e.g., whole of Texas), since I presume constitution is in the public domain? What about the rest of the federal laws? (What about most state laws, in case of a county-to-state succession?)

Answer 1

Under United States copyright law, according to the Copyright Office,

206.01 Edicts of government.
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

Referencing laws is even clearer: copyright doesn't protect referring to something like "Section 830 of the Penal Code of the State of California." Note that this is assuming that they remain within the US, where copyright law is a federal issue. Other countries don't all have the edict of government rule.

If a place were to legally secede and become their own country, they would cease to be bound by US copyright law. They would get to decide if it was legal for them to do it or not; this is just like how it works between the UK and US (the UK claims copyright on its laws, but US courts will not enforce that copyright because it's incompatible with US law). Treaties complicate things, but the Berne Convention allows the edict of government exception.

That said, seceding from the US unilaterally is both legally and practically impossible; seceding from a state is likewise generally going to be legally and practically impossible without permission from the state. So, it all depends on the agreements made.

EDIT:

To specifically address the model codes issue, Veeck v. S. Bldg. Code Congress Int’l, 293 F.3d 791 (5th Cir. 2002) was a case specifically about what happens when model codes are adopted wholesale into law. The Fifth Circuit (after initially finding that the model codes were protected) reversed en banc, finding that a model code produced for the purpose of being incorporated into law, and which has been incorporated into law, and which is then reproduced as the law of the place that incorporated it into law, is not subject to copyright.

Veeck may not apply to cases where the law merely references the model code, or where the thing in question was not made to be incorporated into law (e.g. state laws referencing the Red Book valuation of a car didn't make the Red Book public domain). If both of those are true, it probably doesn't apply; if one holds but not the other, it's unclear. However, if the actual municipal code directly contains the text of the model code, and you reprint it as the law of that municipality (rather than as the model code), there is no copyright in the law.

Answer 2

Since you mentioned secession it's worth noting that copyright (supposing it existed here) would not be a barrier to receiving the law of another jurisdiction.

Many states have statutes that explicitly "receive" the English common law, some in their constitutions. Wiki's article on such statutes provides this example from NY's constitution:

[S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.

California law also has vestiges of Mexican law, including its use of the community property system. And reflecting its own history, Louisiana's state law is built on European civil law (the French and Spanish colonial flavors) rather than English common law.

Answer 3

Well, states cannot secede. . . . No, the state laws are not copyrightable.

For Federal Laws: 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.

According to the Harvard Law blog:

In Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886), the court rested this conclusion on the unfairness of limiting public’s access to the rules that governed its conduct:

Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices. … It can hardly be contended that it would be within the constitutional power of the legislature to enact that the statutes and opinions should not be made known to the public. It is its duty to provide for promulgating them; while it has the power to pass reasonable and wholesome laws regulating the mode of promulgating them, so as to give accuracy and authority to them.

Answer 4

Some great answers so far. Put simply, the result of a copyrightable set of statutes would result in a situation where one would have to purchase the published statutes to know what was in them. This state of affairs would create a threshold where those above the line would know the laws, those below the line would not. This would be fundamentally bad for a sovereign state that calls itself democratic.