Who owns what?

More often than not, the statutes remain silent or they do not have enough words to meet the requirements of establishing justice. What could a judge do at this situation? As the common law dictates, when there seem to be no letters of law, still there is a law and that is the law of conscience and equity. It is said that a crime cannot go unpunished and the justice cannot be undone even though there is no law or rules or regulations in writing. The judges of the courts are hereby destined to find out the ways to ensure that the justice is done; more precisely, "justice should not only be done, but also seen to be done."

In performing this sacred duty, a judge of the court is to undergo a long-drawn intellectually rigorous process. The duty of a judge is to discover the newer ways of interpreting the statutes in an attempt to deliver justice to the people. Therefore, the use of creativity and application of innovative thoughts in interpreting the law is now a usual judicial practice, and this often produces an original work, i.e., enunciates a principle and supplements what is there in the statutes.

In this sense, the judicial opinions are creative solutions to specific problems of the society like the solutions to various sets of technological problems in the patent system of the intellectual property law regime. This leads to raise the most possible question, i.e., can the judges of the courts claim the copyright protection of their judicial opinions? If the lectures and speeches, fixed in form, of the law professors are copyrightable, why should not the copyright of judicial opinions be protected too?

Nearly two centuries ago, Henry Wheaton, a prominent lawyer and the third reporter of the decisions of the Supreme Court of the United States of America (USA), claimed the copyright protection for the judicial opinions, and hereafter, sued Richard Peters, an American attorney and the fourth reporter of the court's decisions, for infringing the copyright of a law digest. In Wheaton v Peters, 33 US (8 Pet) 591 (1834), Wheaton argued that 'the judicial opinions must have belonged to someone because they were new, original, and much more elaborate than law or custom required and the judges of the courts are authors of the judicial principles as such copyrightable'. In the first ruling on the copyright law in the USA, the court pronounced that '[i]t may be proper to remark that the court is unanimously of opinion that 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.'

Around half a dozen cases following the Wheaton decision were pronounced by the Supreme Court of the USA regarding copyright-ability of the courts' decisions and legislation. In the wake of the 20th century, the USA enacted its Copyright Act 1909 declaring that no one owns the judicial opinions and legislations.

The Berne Convention 1886, an international treaty dealing with the protection of literary and artistic works, leaves its state parties at liberty to legislate regarding the ownership of the judicial opinions and laws.

"The government edicts doctrine", a century-long legal principle, evokes that the judges, as vested with the authority to make and interpret the law, cannot be the author of the works they prepare in the discharge of their judicial duties; in the same way, the legislators, acting as such, cannot be either. This has played a vital role in shaping the nation-states' copyright laws.

On the eve of the Covid-19, this doctrine has been discussed elaborately in Georgia v Public.Resource.Org, Inc. 140 S. Ct. 1498, 2020. According to this doctrine, no public officer who is salaried and paid by the government can claim the copyright of works they prepare and discharge in performing their official duties. The spirit of this doctrine hits the works in fixed form of the professors of government colleges and public universities during performing their duties, but the Berne Convention and the Copyright Act 2000 of Bangladesh allow the lectures and speeches of the academics to be copyrighted, while the latter, i.e. the 2000 Act excludes the judicial opinions and pieces of legislation from the protection of copyright. This exception within the spectrum of the copyright law might make judges, legislators and public officers insecure regarding their intellectual work and contributions. Probably, their hearts bleed when they hear their intellectual works remain the copyright free. It may as well seem paradoxical when one ensures the people's copyright and prevents the infringement of the same, there is nobody and no law in the world to protect his/her copyright over his/her intellectual creation.

Here is a solution that judges, legislators and public servants may consider to protect their intellectual work. The Berne Convention, the USA Copyright Act of 1976, and the Copyright Act of 2000 of Bangladesh unanimously admit and ensure the copyrightability of any book either fiction or aesthetic. Therefore, if a judge writes a book compiling his/her judicial opinions or weaves a memoir filled with official experiences and expressions of work all through his/her life, that may be copyrighted; and he may sue if anyone infringes his/her rights.

The writer is an Advocate, District and Sessions Judge Court, Dhaka.