Shyamkrishna Balganesh, ‘Authoring the Law’

ABSTRACT
Copyright law denies protection to legal texts through a rule known as the ‘government edicts doctrine’. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of ‘public policy’ that draw on the overarching importance of public access to laws. In its decision in Georgia v Public.Resource.Org, Inc, the Supreme Court reaffirmed the continuing significance of the doctrine but refused to endorse the public policy justification commonly offered for its existence, preferring instead to root it in copyright’s principle of authorship. In so doing however, the Court refrained from explicating the connection between authorship and the government edicts doctrine, contributing to the doctrine’s mystery. This Article develops a theory of the government edicts doctrine that anchors it firmly to the principle of authorship. The authorship rationale for the government edicts doctrine is rooted in a ‘personalization mismatch’: whereas authorship in copyright law is predicated on the need to personalize a work by identifying the human actor that created it, a commitment to the rule of law necessitates that lawmaking and legal directives be impersonal and derive their authority not from an identified individual. It is this basic mismatch which explains the government edicts doctrine and its principled roots in copyright law rather than broader considerations of public policy. The Article traces the competing (and confusing) normative ideas that have influenced the evolution of the doctrine, develops the analytical basis of its connection to authorship, and shows how this connection enables the doctrine to be extended and applied to new forms and modes of law and lawmaking.

Balganesh, Shyamkrishna, Authoring the Law (March 21, 2021). Journal of the Copyright Society of USA, volume 69, forthcoming 2022.

(Visited 1 times, 1 visits today)

Leave a Reply