7

See this page:

If the citation column does not include a hyperlink, then copyright restrictions prevent BAILII from publishing the judgment (missing cases may be available on other commercial/paywalled sites).

And so the titular question: can the decision of a court be copyrighted, and if so, by whom and on what basis?

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    Reports may be copyright restricted, and commonly have been, even when judgements were not. Judgements are made in open court, and may be reported by a private agency.
    – david
    Nov 28, 2023 at 0:32
  • How can this be? It seems like the report is syndicating a reproduction of a public domain work. How can this obtain any copyright? Nov 28, 2023 at 3:11
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    see that the USA has found against Georgia third-party annotations -- copyright was not clear in that case. And the copyright declarations on works of fiction include the version, date, and publisher. Copyright is complex and depends on jurisdiction. Only the international treaties are common, and they don't address this issue.
    – david
    Nov 28, 2023 at 20:06
  • Does that not raise several different Questions, largely pedantic elsewhere but vital to any consideration of Law? Anything published is always and automatically covered by Copyright. In some cases, possibly including this one, that Copyright might be partially withheld. Quite separately, anything being 'copyrighted' would require a specific application to a relevant authority. Of course all of that is open to complaints of 'mere semantics' but why not tell that to the judge? Nov 29, 2023 at 21:54

5 Answers 5

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No in

The court is part of the trifecta of government - it's part of the Judicative. The government can not have copyright in its works: 17 USC 105 declares such papers to be without copyright protection. This law is also the foundation of the public access to government documents.

(a)In General.— Copyright protection under this title is not available for any work of the United States Government,

Beyond that, the Copyright office vehemently refuses that a registrable copyright in such document would exist, even for any non-federal law or judgement according to their policy. As the first arbiter to what is copyrightable, their policy states, citing Surpreme Court cases:

As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. See Banks v. Manchester, 128 U.S. 244, 253 (1888) (“there has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, 8 Pet. 591, that no copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties”); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.) (“no one can obtain the exclusive right to publish the laws of a state in a book prepared by him”).

No in

If anyone has copyrights in Germany, it would be the author, so the Judge or panel of judges. However, they are explicitly disclaimed from having any copyright protection, to encourage dissemination of judgments under UrhG §5 (1) & (2) - just like most other government documents.

(1) Acts, statutory instruments, official decrees and official notices, as well as decisions and official head notes of decisions do not enjoy copyright protection.

(2) The same applies to other official texts published in the official interest for general information purposes, subject to the proviso that the provisions concerning the prohibition of alteration and the acknowledgement of source in section 62 (1) to (3) and section 63 (1) and (2) apply accordingly.

As the Bundesverwaltungsgericht decided on this in part with BVerwG, 26.02.1997 - 6 C 3.96, which solved that any judgment is by default to be published and without copyright.

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    I don't think the story ends there for the USA. What you said is true about the federal government, but several states have asserted copyright over the work of their governments, and could conceivably do so for court documents. Whether any do or not would require diving into each states laws. Nov 27, 2023 at 16:58
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    @whatsisname Copyright is an exclusively federal matter. And no, about 2 months ago, it was a massive smackdown in exactly that matter: It was before the DC Appeals court that it is impossible to stop someone disseminating the a standard for free, if it becomes incorporated into a law - see also: law.justia.com/cases/federal/appellate-courts/cadc/22-7063/…
    – Trish
    Nov 27, 2023 at 17:49
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    @Trish Copyright is under federal jurisdiction, which does mean the federal law can abrogate copyright protection from state government, but it has not done so. The cited provision applies only to the government of the United States, not the governments of its constituent states. Additionally, the cited case was decided on fair use basis, which means copyright does apply.
    – xngtng
    Nov 27, 2023 at 23:48
  • @Trish The conclusion on court decisions (and statutes, at least the parts that are authored by any legislatures) is correct though, but for public policy reasons as edicts of government.
    – xngtng
    Nov 27, 2023 at 23:51
  • Germany: "any judgment is by default to be published" is not what the BVerwG says. It says the courts must anonymize/neutralize and hand out the decisions "worth publishing" (veröffentlichungswürdig), i.e. those they themselves deem important plus those members of the public asked for.
    – ccprog
    Nov 29, 2023 at 7:49
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Generally the UK judgments available from the Courts and Tribunals Judicary website and BAILII are asserted to be Crown copyright and licensed for use under the Open Government Licence.

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    "The UK government has historically charged fees for access to some Crown copyright works in order to offset costs," so it may be that BAILII didn't want to pay the fee. Nov 28, 2023 at 7:38
  • Some judges are employed by the Crown, and hence copyright automatically vests in the Crown on creation; others are not, in which case in theory it belongs to the judge. There may now be arrangements for copyright assignment from fee-paid judges who are not employees but there did not used to be. Nowadays judgments are usually typed up by a judge; but they are still sometimes made orally and then "reported" and transcribed by others. Sometimes they reporters might assert Walter v Lane style copyright. Nov 28, 2023 at 11:45
  • @FrancisDavey - Wouldn't the copyright for fee-paid judges not be considered work-for-hire and thus the property of the crown regardless? Nov 28, 2023 at 17:35
  • @ScottishTapWater there is no concept of "work-for-hire" in UK copyright law. If you aren't an employee and have not assigned copyright in writing, you are the first owner of your work. Nov 30, 2023 at 8:00
  • @Francis - So if you're a contractor, you don't automatically vest your copyright in the work you've created..? Dec 3, 2023 at 14:50
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In , it cannot:

§ 5 par. b) of the copyright law 185/2015 Z. z. says explicitely:

Za predmet autorského práva sa nepovažuje

... b) text právneho predpisu, úradné rozhodnutie alebo súdne rozhodnutie ... bez ohľadu na to, či spĺňajú podmienky podľa § 3 ods. 1

Google translation:

It is not considered the subject of copyright

... b) the text of a legal regulation, an official decision or a court decision ... regardless of whether they meet the conditions according to § 3 par. 1

§ 3 par. 1 defines what can be copyrighted (basically a unique product of creative activity)

And I think other EU countries will have similar exceptions.

1
  • a translation seems to be wipolex-res.wipo.int/edocs/lexdocs/laws/en/sk/sk096en.pdf: The following concepts are not subject to copyright: [...] b) a text of legislation, a decision of public authority or a court decision, technical norm,2) including draft materials and translations thereof, irrespective of whether they meet requirements pursuant to Section 3 paragraph 1, [...]
    – Trish
    Nov 27, 2023 at 10:50
6

Not only can it be, it is copyright

Copyright in judicial decisions continues to reside in the State pursuant to the Copyright in Judicial Decisions Notice 1995 (NSW).

There is a fairly broad default licence subject to some conditions related to accuracy, that such copies are not official, and relating to the use of the State’s Coat of Arms.

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Not in . Law 9.610/98 (our copyright law):

Art. 8º Não são objeto de proteção como direitos autorais de que trata esta Lei:

[...]

IV - os textos de tratados ou convenções, leis, decretos, regulamentos, decisões judiciais e demais atos oficiais;

roughly translates to:

Article 8º The following are not protected as copyrights covered by this Law:

[...]

IV - the texts of treaties or conventions, laws, decrees, regulations, court decisions and other official acts.

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