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Comparison of the United States and the United Kingdom Copyright Laws Regarding Ownership of Primary Law Materials

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Comparison of the United States and the United Kingdom Copyright Laws Regarding Ownership of Primary Law Materials KINGDOM COMPARISON OF THE UNITED STATES AND THE UNITED LAW MATERIALS COPYRIGHT LAWS REGARDING OWNERSHIP OF PRIMARY By IRINA Y. DMITRIEVA A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2003 Copyright 2003 by Irina Y. Dmitrieva For my parents, Elizaveta and Yuriy Dmitriev, for my grandmother, Vera Klennikova, and in the loving memory of my grandfather, Alexander Klennikov. ACKNOWLEDGMENTS This dissertation would not have been possible without the help of the librarians on staff the University of both sides of the Atlantic. 1 would like to thank the patient of grateful Florida’s Government Documents collection, especially Paige Harper. Also, I am British for the opportunity to have worked in the following U.K. collections; the Museum the Library; the Public Records Office at the National Archives of England, Wales, and United Kingdom; the House of Lords Reeords Office; and the Bodleian Law Library at for supplying me with the University of Oxford. I thank Her Majesty’s Stationery Office the requested materials. My special thanks go to my academic advisor. University of Florida Professor Bill Chamberlin, who was with me every step of the way, and to my family in Moscow, Russia, who always supported me: my mother, Elizaveta Dmitrieva, my father, Yuriy Dmitriev, my grandmother, Vera Klennikova, and my uncle, Vitaliy Klennikov. IV TABLE OF CONTENTS pagg ACKNOWLEDGMENTS ABSTRACT ^ CHAPTER ^ 1 INTRODUCTION Research Questions and Methodology ^ ^ Theoretical Framework ^ Significance Of the Study ^ ^ Literature Review Review of Literature on U.S. Copyright Protection of Government Materials 15 Review of Literature on U.K. Copyright Protection of Government Materials 20 IN THE 2 COMMON LAW HISTORY OF THE CROWN’S EXCLUSIVE RIGHTS TEXT OF LAWS 29 31 Legal Basis of the Crown’s Exclusive Rights in Official Legal Texts 36 Common Law on the Crown’s Exclusive Rights in Official Legal Texts -1950s 41 3 CROWN COPYRIGHT IN THE PERIOD OF 1 880s 41 Memorandum and the Treasury Minute of 1887 49 Copyright Policy Under the Treasury Minute of 1887 Copyright Act of 1 9 1 1 55 Copyright Policy Under the Treasury Minute of 1912 - 69 4 CROWN COPYRIGHT IN THE PERIOD OF 1950S 1980s The Copyright Act of 1 956 Copyright Policy under the Copyright Act of 1956 83 Copyrights, Designs and Patents Act of 1988 89 Copyright Policy under the Copyright, Designs and Patents Aet of 1988 101 1990s 109 5 CROWN and PARLIAMETARY COPYRIGHT IN THE 110 Events and Policies That Shaped Government’s Copyright Regime in the 1990s Government Information as a Marketable Commodity 110 V Privatization of the HMSO ^ 119 Initiatives on Electronic Distribution of Government Information 123 Tony Blair’s Freedom of Information Initiative Compliance with the European Community Law 130 Revision of Crown Copyright Policy in the Late 1990s 135 The Green Paper on Crown Copyright in the Information Age 135 138 Responses to the Green Paper The White Paper on The Future Management of Crown Copyright 151 HMSO Guidance Notes 1^^ 6 ONLINE AVAILABILITY OF GOVERNMENT MATERIALS IN THE UNITED KINGDOM 162 163 Statutes and Bills 166 Judicial Opinions 168 Portal Sites and Regulatory Materials Conclusion 120 7 COMMON LAW AND PUBLIC POLICY ON COPYRIGHT IN PRIMARY LAW MATERIALS IN THE 19™ CENTURY 172 Overview 172 8 LEGISLATIVE HISTORY OF THE BAN ON COPYRIGHT IN FEDERAL GOVERNMENT WORKS 181 182 The Printing Law of 1 895 1^7 The Copyright Act of 1 909 The Copyright Act of 1976 205 Preliminary Drafts of the Copyright Office 209 1964 Copyright Revision Bill 217 1965 Copyright Revision Bills 221 Arguments over Definition of a U.S. Government Work 231 NTIS Amendment 234 9 U.S. INFORMATION POLICY IN THE 1980s -90s AND “COPYRIGHT-LIKE” CONTROLS EXERCISED BY FEDERAL AGENCIES OVER THEIR INFORMATION PRODUCTS 240 Overview 240 The 1980s: Government Works as a Commodity 246 Paperwork Reduction Act of 1980 and OMB’s Circular A-130 246 OMB’s Fee Guidelines 251 The 1990s: Attempts to Reform the Government Printing System 256 Revised Circular A-130 256 104*'' Congress, U* Session: Proposals to Privatize the GPO 258 104*'' Congress, 2"*' Session: The Problem of “Fugitive Documents” 262 VI GPO’s Role Within the Government: Separation of Powers Issue 268 H.R. 4280: Proposal to Decentralize Government Printing 270 105* Congress, Session: Congressional Hearings 272 105* Congress, 2"*^ Session: S. 2288 276 .. 284 10 STATE OWNERSHIP OF COPYRIGHTS IN PRIMARY LAW MATERIALS Legal Grounds For Copyright In the State Primary Law Materials 284 Statutory Compilations and Other Legislative Materials 288 State Court Reports State Administrative Rules PRIMARY LAW 1 1 ONLINE AVAILABILITY OF FEDERAL AND STATE MATERIALS 311 Federal Primary Law Online 311 Overview Of Federal Laws and Regulations Requiring Online Access To Primary Law Materials 311 Online Availability Of Federal Statutes and Legislative Materials 315 Online Availability Of Federal Judicial Opinions 317 Online Availability Of Administrative Regulations and Decisions 324 State Primary Law Online: Statutes, Administrative Regulations and Court Decisions 326 12 ANALYSIS OF FINDINGS 332 Sovereigns: The King vs. “We the People” 337 Royal Prerogative as an Attribute of Aristocracy Denounced by the United States... 338 Strong Commitment of U.S. Founding Fathers to the Freedom of Pohtical and Religious Thought 339 Different Roles Played By the British Monarchy and the United States’ Government: Paternalism vs. Negative Powers 340 Application ofNetanel’s Analytical Framework To Government Documents 353 Governments as Rational Economic Actors 367 LIST OF REFERENCES 378 Government Statutes and Reports 378 United Kingdom 378 United States 379 Federal statutes and reports 379 State statutes 382 Table Of Cases 383 United Kingdom 383 United States 383 Books and Articles 384 vii ' ' -fF. 390 BIOGRAPHICAL SKETCH ' , .(di^ \ 4 '» >.• f"' ' ' • # . * : * '. t . -t :V4 n j. '- i- » -.»• ^ ••xi .V»'' .r"^' ‘.s M s •! •«'» , *' . rV * ' > <«• >»/ ""A. n ymt'i - . r jj T-’ii« ' •i ‘ s'’ - -. 1 ' vt '».;^?4 -- 'I •a ..V. '3 •t' -I ,-4^ .ii ‘y' . <»' •C‘^ 4 • t •. w>' f >V viii 9^ >4 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy COMPARISON OF THE UNITED STATES AND THE UNITED KINGDOM COPYRIGHT LAWS REGARDING OWNERSHIP OF PRIMARY LAW MATERIALS By Irina Y. Dmitrieva May 2003 Chair: Bill Chamberlin Major Department: Journalism and Communications The work explores the similarities and differences in eopyright laws of the United States and the United Kingdom regarding the ownership of primary law materials, including statutes, judicial opinions, and administrative regulations. By analyzing the common law and legislative histories of copyright statutes, the work explains why the the “black letter” laws of the two countries are diametrically opposite to each other-while United States bans eopyright in federal government works, the United Kingdom seeures both Crown copyright in the text of its laws and Parliamentary copyright in an array of legislative materials. The work also shows that, while the United States and the United Kingdom have different policies toward copyrighting government documents, officials in both countries largely have the same concerns. In general, they want widespread distribution of non- confidential government information that has a direct bearing upon reelection process. At the same time, governments in both coxmtries seek ways to fund publications that are not IX different is clear that a major reason for the in large political and economic demand. It argument in the United States for ready access policies, however, is the dominance of the secrecy, greater concern in the United Kingdom for to official information compared to a use copyright as a means of control over the security, and accuracy. But both countries flow of government information. X CHAPTER 1 INTRODUCTION In the modem world, governments generate a wealth of information that has both economic and political significance. For instance, governments on both national and local levels promulgate laws and regulations; collect various statistical, financial and technical data; develop educational guidelines, and gather all kinds of information about the population within their territories. Access to the information created and held by the government entities enables citizens to learn about political processes and, ultimately, to ’ make informed decisions in elections about their political representatives. Arguably, one of the most important governmental assets is information of a legislative and judicial nature. This information includes the texts of laws and regulations binding on all the citizens, official interpretations of those laws, information about governmental policy, legislative process, and proposals for changes in current law. Without this information, citizens would be unable to participate in the process of democratic self-government. including laws A nation may define its information policy by a variety of laws guaranteeing fi-eedom of expression, providing for public access to specified government information, and requiring state agencies to disclose certain information to the public.^ ' See Alexander Meiklejohn, Free Speech and Its Relation to Self-Government, New York: Harper (1948). ^ See Robert Gellman, Twin Evils: Government Copyright and Copyright-Like Controls
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