Are Court Filings Copyrightable?

A lawsuit in Canada is asking the novel question of whether legal filings are protected by copyright.  The proposed class action is filed on behalf of a Canadian lawyer against Thomson Reuters for violating the Canadian Copyright Act by including briefs and other records in that company's Litigator service which is comparable in some respects to Westlaw.  Canada's copyright law differs in some respects from that of the United States.  Canada recognizes an author's moral rights in a work.  Aside from the standard unauthorized copying of a work, the claim also stem from a violation of the moral rights.  A complete description of the issues and claims is available from the lawsuit's web site.  I guess it's fashionable these days for lawsuits to have their own web presence.  More on that in a bit. 

It was last July that U.S. attorney Edmond M. Connor was aghast to learn that the Supreme Court of California was supplying briefs and records to Lexis and Westlaw for sale to other attorneys.  He stated via letter his concern to the Court that other attorneys would be buying his work product and using it without fair compensation.  He suggested several rule changes to California court rules that would modify the practice.  Attorneys should designate which filings were licensed for download and could make the determination whether royalties should go to the attorney or a designated pro bono purpose.  From the letter:

Based on the results of Mr. Hedenkamp's legal research, I sent letters to Lexis and Westlaw, stating my belief that their actions constituted copyright infringement, and asking for their views on the subject.  While Lexis and Westlaw both claimed that their actions were not unlawful, neither was able to cite a single statute or case to support that position.

Without having to decide whether Westlaw and Lexis are engaging in copyright infringement in copying and selling appellate briefs, the Supreme Court should change its practice of providing these commercial vendors with free copies of the briefs that unsuspecting attorneys around the state a reserving on the Supreme Court pursuant to Rule 8.212, believing that these copies will be used for court-related purposes, rather than to generate corporate profits.  In fairness to attorneys who dutifully comply with Rule 8.212, the undisclosed practice of routing briefs to Westlaw and Lexis can and should be halted unless and until a fair contract is worked out with them as proposed above.

So far, the Supreme Court of California has not acted on Attorney Connor's letter.  Do I owe him any money for quoting part of it above? 

The status of attorney generated content that is filed in court is unsettled in the United States.  U.K. law, for example, specifically exempts documents filed in court from claims of copyright.  U.S. law extends to literary works but excludes those which "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."  (Sec. 102) Do these exclusions cover legal filings? The section on government works specifically excludes government works from copyright claims, but includes this provision (Sec. 105):

...[B]ut the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Could "otherwise" include submitting a document to a court and thus transforming it into a part of the public record? 

The practical steps for anyone seeking a court filing was typically to visit the clerk of the court office, wade through the file (or worse, microform) and pay an exorbitant fee to duplicate the item.  To my recollection, attorneys were not compensated for this.  Then came things like the Internet and PACER, where for a "slight" fee, anyone with an account can pay for documents filed in the various federal courts.  Though PACER actually runs in the black, none of that profit is shared with the attorneys who generate those documents.  Of course, the federal courts and the clerk's office are not profit centers despite the cash they generate for attorney product.  Court rules covering issues in discovery routinely protect work product such as the internal memoranda that may describe relations with a client.  Filed, "public," documents, however, do not have similar protection.  Work product, however, is usually not licensed for sale otherwise. 

The nub of this is commercial exploitation by Westlaw and Lexis.  We in the academic world don't have much of a feeling as to whether attorneys copy parts of briefs from other but similar litigation and incorporate them in their own filings.  Courts don't usually ask if counsel has plagiarized their filing, let alone licensed it from someone.  Perhaps someone in the commercial litigation part of the library profession can comment on this.

Making briefs available would seem an unlikely selling point for Westlaw and Lexis given the vast amount of information their databases contain otherwise.  But even if this were the case, would there be a distinction based on the source?  How many actual briefs and records are available for free on the Internet?  Many of them are put there by attorneys at their own web sites for download.  Moreover, many of these are paid for by the client.  Does this make them works for hire with copyright extending to the client rather than the attorney?  For the record, Attorney Connor complained that the brief in his situation was prepared pro bono for an indigent client, so there are even more exceptions to characterizing the creation and status of these documents.

I think the idea of a suit such as this is silly.  At the same time, I wish one would be brought in the United States simply to put the issue at rest.  [MG]