Supreme Court decision bolsters the Code Council’s copyright case

The International Code Council initiated litigation against UpCodes for the wholesale copying of the International Codes (I-Codes) without permission. UpCodes’ defense has been that the I-Codes are not copyrightable because they are adopted by various governmental authorities and have the force of law. In a decision issued on April 27, 2002, the U.S. Supreme Court expressly rejected UpCodes’ defense, holding that instead of examining whether something carries ‘the force of law,’ we ask only whether the author of the work is a judge or a legislator.”

The Supreme Court case, Georgia v. Public.Resource.Org., considered whether Georgia could claim copyright in annotations to the Georgia code. While the author of a work owns the copyright upon creation, there is a narrow exception to this rule called the government edicts doctrine. The Supreme Court made clear that under the government edicts doctrine “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” The Supreme Court concluded that the annotations to the Georgia Code met the two-part government edicts test, and thus, were not copyrightable.

The I-Codes do not meet either requirement of the government edicts doctrine – the codes were developed by the Code Council, a private, nonprofit organization that has no judicial or legislative function. The Supreme Court decision confirms that the I-Codes are entitled to copyright protection.

Accordingly, UpCodes’ wholesale copying of the I-Codes for its shareholder’s personal benefit constitutes willful copyright infringement. They are profiting off their unlawful use of the I-Codes. Their copyright infringement directly undermines the safety of our communities by harming the Code Council’s ability to continue to fund the development of the codes.

For more resources on the importance of copyright, please visit www.iccsafe.org/copyright-protection.

You can also listen to two recent ICC Pulse Podcast episodes on the issue: A Member Perspective with Glenn Mathewson and Copyright Issues and the I-Codes with Mark Johnson and Mel Oncu