It is a well established principle that edicts of state government cannot be copyrighted.  However, this study found that several states attempt to do just that.  This is either implied by copyright notices on webpages that contained primary law  or via explicit statements claiming copyright on legal information.   Some examples of the latter include:

• Pursuant to Section 1-1-9 Miss. Code Ann., the laws of Mississippi are copyrighted by the State of Mississippi. Users are advised to contact the Joint Committee on Compilation, Revision and Publication of Legislation of the Mississippi State Legislature for information regarding publication and distribution of the official Mississippi Code. AND Copyright © 2015 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. (Mississippi Code)
• The Arkansas Code of 1987 is copyrighted by the State of Arkansas. By using this website, the user acknowledges the State’s copyright interests in the Arkansas Code of 1987. Neither the Arkansas Code of 1987 nor any portions thereof shall be reproduced without the written permission of the Arkansas Code Revision Commission, except for fair use under the copyright laws of the United States of America, and except that Arkansas Code of 1987 section text, numbering, lettering, and forms may be copied from this website by the user and reproduced in copyrightable works where the portions of such section text, numbering and lettering reproduced are germane to the intellectual content of such work. (Arkansas Code)
• Any user intending to obtain the Revised Code of Washington or the Washington Administrative Code for the purpose of selling the same is advised to contact the Washington State Statute Law Committee, which claims copyright for both codes, at 360.786.6777. (Washington Code and Administrative Regulations)

As for the former, the existence of website disclaimers poses an interesting challenge in trying to determine if a state is claiming copyright on their primary legal information.  It is entirely possible that the copyright text is a remnant of the webpage framework.  However, given how states have proven that they are willing to be litigious when it comes to protecting their copyright interests, it is possible that at the very least these copyright claims will have a chilling effect on use of the law, especially for wholesale users.

This study found widespread use of website copyright text.  For case law websites, the existence was forty-five (45) out of one hundred and five (105) sites visited.  Only one state – Massachusetts – explicitly said that they claimed no copyright interest in the text of the case law.

For regulation websites, fifteen (15) out of fifty (50) display a copyright notice.

For state code websites, claims of copyright were present in twenty-seven (27) of the fifty-one (51) states visited.  Additionally, 3 states – Arkansas, Mississippi, and Washington – made explicit claim to the copyright of their law.

An additional wrinkle in this issue occurs with state codes.   Thirty-four (34) of fifty-one (51) official state codes (Or 67%) are annotated.  Depending on the publishing agreement in place, these annotations are either drafted by a private corporation, a private corporation acting on contract by the state, or by state employees.  The copyright status of these materials often remains unclear due to the fact that states are permitted to copyright their non-edict of government documents. To ease some of the confusion, the Harvard Library Copyright Office has created a chart which shows the copyright status of government materials in each state.   This adaptation of the chart shows which states have annotated codes – both published by outside publisher and those published by the state.

Although this study concentrates primarily on web based publishing activities of the states, given the unclear meaning of the copyright notices on the webpages, the official print versions of the state codes were investigated for their copyright notifications.

For “official” print codes, the following results were found:

• Four (4) codes – No Claim of Copyright by anyone
• Twenty-two (22) – State Claims Copyright
• Ten (10) – Thomson Reuters (or some subsidiary thereof) Claims Copyright
• Nine (9) – LexisNexis (or some subsidiary there of, usually Mathew Bender) Claims Copyright
• Three (3) 3 Shared Claim of Copyright between State and Publisher

Readers may note that this only adds up to 48 codes.  That’s because some states have designated their online code to be official and some states have two official versions of print codes.

Most of the codes are annotated, so it’s entirely possible that the claim of copyright is referring to the annotations.  Seven (7) codes – Connecticut, Idaho, Minnesota, Nebraska, Nevada, South Carolina, South Dakota,  and Washington – are UN-annotated and yet there still is a state claim of copyright.  It seems that these states are claiming copyright on the primary law itself.

It should also be noted that when a outside publisher is claiming copyright on a state code, they may not be just referring to annotations.  Some states, for example Indiana, do not create parts of their codes such as the section headings and these have been copyrighted, in the case of Indiana, by the private corporation. This in an obvious impediment to a wholesale user of the code that would wish to republish it.