Hon. H. K. Evans

*1 In compliance with the request of the joint committee of the senate and the house of representatives, of which you are secretary, I submit to you herewith my opinion upon the following questions propounded:

*1 Has the state a right to copyright the proposed code, with annotations of the same, and how far will such copyright protect from private competition in its sale; also as to the right of the state to pass a copyright law.

*1 It has been held a copyright cannot be sustained as a right existing at common law, but as it exists in the United States, it depends wholly upon the legislation of congress.

*1 There are a number of decisions of the federal courts holding that to secure a copyright one must bring himself strictly within the provisions of the act of congress, which is found in section 4952 of the revised statutes of the United States. Some of the decisions are justly subject to the criticism that too narrow and illiberal a view is taken in holding that to secure the benefit of a copyright, one must comply literally and technically with every provision of the statute.

*1 A doubt has been suggested in Banks v. Manchester, 128 U. S. 244, as to whether the state can be the holder of a copyright, by the use of the following language: “The state cannot properly be called a citizen of the United States or a resident therein, nor could it ever be in a condition to fall within the description in sections 4952 or 4954. The copyright claimed to have been taken out by Mr. DeWit in the present case being a copyright ‘for the state,’ is to be regarded as if it had been a copyright taken out in the name of the state. Whether the state can take out a copyright for itself, or could enjoy the benefit of one taken out by an individual for it as the assignee of a citizen of the United States or a resident therein who should be the author of a book, is a question not involved in the present case and we refrain from considering it.”

*1 The question raised, but not decided, in this manner has not been since passed upon by the supreme court. Technically speaking, the state is not a citizen of the United States; neither is a county, nor any municipal or political corporation. A corporation organized under the laws of a state, technically speaking, is not a citizen of the state or the United States, yet all of these have been treated and considered as citizens of the state for the purpose of bringing an action against them, or maintaining an action in the federal courts.

*1 The state, in its sovereign capacity, may own property, real, personal or incorporeal; it can be the assignee of a right; it may maintain an action in the courts of the state or the federal courts as a person, and, before the law, stands as an individual. I can conceive of no good argument why the state may not become the assignee of a copyright, and may not own the same, or why it may not be the proprietor of any book which has bean copyrighted, nor why, for the purpose of obtaining a copyright, it should not be considered a citizen of the United States as readily as a corporation created by the authority of the state. The suggestion that it may not obtain a copyright because it lacks the element of citizenship, with all due deference to the high authority which raises the query, does not commend itself to my judgment, and I cannot rid myself of the feeling that such a construction of the statute would be too technical and too narrow to ever, become the settled law of the land.

*2 If it should be held that the state cannot, because of the lack of citizenship, obtain a copyright in the first instance, I have too much respect for the learning, ability and exalted character of the supreme court of the United States to imagine for one moment that it would hold that the state could not become the assignee of a copyright duly obtained by a citizen of the United States.

*2 An annotated code embraces the statutes enacted by the legislature, also references to the decisions of the supreme court construing or affecting different sections, a table of cases, indexes and notes prepared by the editor. A serious question has been raised, whether the acts of the legislature can be copyrighted. Drone on Law of Copyright, 164, says: “Statutes are within the same principle that govern judicial decisions. They are the property of the government which employs and pays those who make them. The government, if it chooses, may have them copyrighted, and only the government, or some person deriving title from it, has this right.”

*2 The court decisions to sustain the text are wholly English. I have found no American case holding in direct language that statutes may be copyrighted. Judge Brewer, in Banks v. West Publishing Company, 27 Fed. Rep., 50, concedes that the consensus of the English authorities is all in favor of the doctrine that the government may copyright its laws, but expresses his own view that it should not be done. The theory upon which it is contended that the statutes of a state and the decisions of the supreme court cannot be copyrighted is stated by Justice Blatchford in Banks v. Manchester, 128 U. S., 244-253: “Judges, as is well understood, receive their pay from the treasury, a stated, annual salary fixed by the law, and cannot themselves have any pecuniary interest or proprietorship as against the public at large in the fruits of their judicial labor. This extends to whatever labor they perform in their capacity as judges, as well as to the statement of cases and head notes prepared by them as much as to the opinions and decisions themselves. The question is one of public policy, and there has always been a judicial consensus from the time of the decision in Wheaton v. Peters, 8 Peters, 591, that no copyright could, under the statute passed by congress, be secured on the products of the labor done by the judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes an authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it be a declaration of unwritten law, or the interpretation of a constitution or a statute.”

*2 This is in accord with the opinion of Justice Sage in the same case reported in 23 Fed. Rep, 143, in which he says: “It is in accordance with sound public policy in a commonwealth where every citizen is presumed to know the law, to regard the authentic expositions of the law by the regularly constituted judicial tribunals, as public property to be published freely by anyone who may choose to publish them.”

*3 It is said in Davidson et al. v. Wheelock et al., 27 Fed. Rep., 61: “They, the complainants, obtained no exclusive right to print and publish and sell the laws of the state of Minnesota, or any part of the legislative acts. The materials for such publication are open to the world. They are public records, subject to inspection by everyone under such rules and restrictions as will secure their preservation. They maybe digested or compiled by anyone, and it is true such compilation may be so original as to entitle the author to a copyright on account of the skill and judgment displayed in the compilation and analysis, but such compiler can obtain no copyright for the publication of the laws only; neither could the legislature confer any such exclusive privilege upon him.”

*3 The learned judge cites no authority for the last clause above quoted, and I find none that will sustain it, save and except that quoted above from Banks v. Manchester.

*3 I have observed that the cases which seem to hold that the decisions of the supreme court cannot be copyrighted, are based upon the fact that the acts of the legislature do not expressly authorize the statutes of the state to be copyrighted, or by statute indicate that the laws should not be free to any publisher.

*3 The case of Wheaton v. Peters related to the reports of the supreme court of the United States. The right of the reporter to a copyright on his work was recognized, but it was held that the legislation of congress did not authorize the reporter to copyright the opinions filed by the court, and it was said that the members of the court, being in the employ of the government, had no proprietary interest in their decisions, and could not authorize the reporter to copyright the same. All of the decisions which have used language from which it is implied that the decisions of the court or statutes could not be copyrighted, are based upon the fact that there was no statute authorizing the same to be copyrighted.

*3 Judge Blatchford in Callaghan v. Myers, 128 U. S., 617, says: “But although there can be no copyright of the opinions of the judges or the work done by them in their official capacity as judges, yet there is no ground of public policy in which a reporter who prepares a volume of law reports of the character of those in this case, can, in the absence of a prohibitory statute, be debarred from obtaining a copyright for the volume which will cover the matter which is the result of his intellectual labor, * * * even though the reporter may be a sworn public officer, appointed by the authority of the court of which he is made the reporter, and even though he may be paid a fixed salary for his labors; yet in the absence of any inhibition forbidding him to take a copyright for that which is the lawful subject of copyright in him, or reserving a copyright to the government as the assignee of his work, he is not debarred of the privilege of taking out a copyright which would otherwise exist.”

*4 The sole reason, then, for making a distinction between copyrighting the fruits of the labor of a judge paid by the state, and of a reporter paid by the state, is an undefined public policy. Under the English authorities, the state has a proprietary interest in the fruits of the labors of its officers. I doubt very much whether this doctrine of public; policy will stand the test of reason, and strange it is that it should be announced and asserted by the courts of the United States with reference to the publication of the decisions or laws of a state. Were not this doctrine announced by such high authority, I would have believed that the legislature of a state was the sole judge of what should be the policy of the state, or what should be for the best interest of its citizens.

*4 Surely the right to determine the policy of the state in promulgating and publishing its own laws was not granted by the federal constitution to congress, or to the courts created by the acts of congress, and were it not for the high character of the court, I would have said such rights were reserved to the state. I still think the better doctrine is that the state may determine for itself how and by whom its laws shall be published, whether statutory laws, or the decisions of the courts.

*4 In this connection, the language of the court in Gould v. Banks, 53 Conn., 415, is pertinent: “It is for the state to say when and in what manner it shall publish these reports, and the taking of a copyright in no sense offends the rule that judicial proceedings shall be public. The courts and their records are open to all.”

*4 Judge Story, in Folsom v. Marsh, 2 Story Reports, 100, 113, says, with reference to the letters of Washington: “But assuming the right of the government to publish such official letters and papers under its own sanction for public purposes, I am not prepared to admit that any private persons have the right to publish the same letters and papers without the sanction of the government for their own private profit and advantage. * * * Congress has indeed authorized the purchase of these manuscripts from the owner and possessor thereof and paid the liberal price of $25,000 therefor, and they have thus become national property. But it is an entirely inadmissible conclusion that therefore every private person has a right to use them and publish them.”

*4 This was a recognition of a right of the government, so fully recognized by the English authorities, to control the publication of any matter in which it has a proprietary interest, and this I believe to be the true principle.

*4 Upon the question whether there may be a copyright of the annotations, indexes, notes, arrangement, etc., of the editor, I do not think there can be any difference of opinion. While there is doubt in regard to the right to copyright the statutes only, there can be none that that part of the annotated code which is the product of the labor, skill and research of the editor, may be copyrighted. The copyrighting of the reports by the reporter has secured to him, or his assignee, the exclusive right to publish the reports in that form, and to whatever has been added by his research and labor to the opinions of the court. This doctrine is so well recognized that I do not think it necessary to cite the authorities.

*5 I am of the opinion, therefore, that the annotated code, arranged and prepared by an editor in the employ of the state, can be copyrighted by him for the state, and such copyright would prohibit its reproduction by private parties in that form. The fruits of the labor, skill and learning of the editor would be certainly protected thereby. I doubt very much, because of the utterance of the supreme court in Banks v. Manchester, whether the laws themselves can be copyrighted. The state must bring itself into a condition to be able to comply with the provisions of the copyright law of congress. This I have doubts as to its ability to do, because of the views of the supreme court as foreshadowed in Banks v. Manchester.

*5 The question, however, has never to my knowledge been fairly presented to the supreme court of the United States. In Banks v. Manchester the circuit court found that the laws of Ohio did not authorize the reporter to copyright the opinions of the judges. This was a sufficient ground upon which to base the final decision of the case. If the court intended to commend the policy of the state of Ohio in leaving the opinions of the court free for publication to anyone, as sound policy, and to limit the language used to the facts of that case, then no insuperable barrier to copyrighting the laws and opinions of the court is presented, if the legislature, by statute, directs it to be done. In Wheaton v. Peters, 8 Peters, 591, it was said: “No reporter has, or can have, any copyright in the written opinions delivered by this court, and that the judges thereof cannot confer on any reporter any such right.” Why? Because the fruits of the labor of the judges belonged to the government, and no act of congress authorized the judges to give to the reporter the property of the government.

*5 This is very different from holding that the government, state or national, has no power to protect its proprietary interest in the laws or opinions of its judges against piracy.

*5 I think on principle and authority a state has this power, and also that the copyright law of congress should be broad enough (if it is not now) to enable the state to obtain a national copyright of its laws, judicial opinions and documents; but I frankly say the trend of the United States court's decisions seems to be against the right of the state to do so under existing laws

*5 But if the statutes themselves may be published by other parties, with annotations thereof which are made by the independent labor of such other person, the publication for the state, however, would have the advantage, because it would be received as evidence of the law in all courts, and most likely he put upon the market at a lower price than one published by private parties for the profit of such publication.

*5 In regard to your last question, “Has the state a right to pass a copyright law?” I will say that prior to the adoption of the federal constitution the states had such a right. Massachusetts and Connecticut enacted such laws. The inability, however, of the several states to secure to authors and inventors a natural right to the fruits of the mental labors was recognized, and a clause was inserted in the constitution giving power to congress to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. This clause was not in the first draft of the constitution. Curtis, in his History of the Constitution, volume 2, page 339, says the power to legislate on these subjects was surrendered by the states to the general government. Judge Story, however (Story on Constitution, section 1154), does not clearly express himself whether this power is exclusive or concurrent with that of the states. In Livingston v. Van Ingham, 9 Johnson, 507, the supreme court of New York inclined to the view that the power given to congress relates solely to authors and inventors, and not to these who introduce new inventions. The reasoning was based upon the idea that congress did not have exclusive power, but the power of congress was concurrent with that of the states.

*6 I do not think so, however. By the rules of interpretation of the powers of congress laid down in I Story on Constitution, chapter 5 (see section 447 especially), which are abundantly sustained by the decisions of the supreme court, I am of the opinion that the grant of the power to copyright and patent confers upon congress the exclusive right to enact laws upon this subject. From the nature of the case, such laws must be national in their effect, and in my opinion the state has no right to pass a copyright law. To refer to the authorities and the reasoning which leads me to this conclusion would unduly extend this opinion, already too long.

*6 The state, however, has a proprietary interest in its laws, and it may prescribe rules and regulations for the publication thereof. I am not prepared to say that it may not prohibit the sale, within the state, of any publication of laws unless the same bears the stamp and authentication of the properly constituted officer of the state. It could prohibit counties or townships buying any other than the publication of the state. It could refuse to make other publications receivable in courts as evidence of what the law is.

*6 The inherent power which the state has is such that without a copyright law of its own, by the enactment of suitable laws with that end in view, no private publisher would find it to hisadvantageto enter into competition with the state.