…and Wonders About Copyright Issues with Digitizing Law and Annotations!
The Code Commission wasn’t as enthusiastic about the changes Code Counsel Wenzel Cummings proposed as I thought they would be. Bob Mercer reports that the panel of lawyers is o.k. with no longer codifying Legislative findings, but they think clarifying how to resolve conflicts between initiated measures and statutes amended by a meddling/sabotaging Legislature is “premature”:
Commission member Tom Lee of Pierre said moving forward would be “premature” without taking the public’s pulse. Lee also said it would be worth checking lawyers’ opinions through a notice in the State Bar newsletter. Lee said he wanted to avoid accusations of “back office” dealing.
Senator Art Rusch, a Vermillion Republican who’s a retired circuit judge and a former state’s attorney, said he would welcome getting lawyers’ input first [Bob Mercer, “S.D. Panel Delays Changes Code Counsel Sought,” KELO-TV, 2019.10.16].
The Code Commission also balked at reverting to the pre-1967 practice of writing bills as one long section instead of as multiple sections that end up scattered around the chapters and titles and turn legal research into a scavenger hunt.
“What I’m hearing is this commission isn’t ready to make a change yet,” Gillespie said. She added, “This would be a big change in policy, it sounds” [Mercer, 2019.10.16].
The Code Commission did okey-dokey digitizing Legislative records from 2004 through 2018 and making them available on the State Library’s website. Whoo-hoo! However, Senator Rusch raised a copyright concern—not about whether we can publish our own laws on our own website, but whether we might get in trouble for posting our publisher Thomson West’s legal annotations:
Senator Art Rusch, a Vermillion Republican, asked whether the current publisher of the code consented to internet publication of the legal annotations that appear in the South Dakota law books.
Code counsel Wenzel Cummings said the topic wasn’t something he had discussed.
Commissioner Doug Decker of Pierre, who previously was code counsel, said there is an exception to copyright law that exempt educational purposes. “My default position is to look at the contract,” Decker said. “There may be a way to address this statutorily too.”
[Collection services librarian Brenda] Hemmelman said the legislative collections are used for purposes that qualify as “truly educational.” She said the State Library receives inquiries from researchers both in and outside South Dakota, as well as from law-school students outside the state [Bob Mercer, “S.D. Board Gives State Library a Green Light to Put More Legislative Records on Internet,” KELO-TV, 2019.10.16].
I rankle at the notion that any private entity can claim ownership over knowledge about our laws, but the legal annotations to South Dakota Codified Law are a creative work product. I like the idea of appealing to fair use for education (I make my own legal annotations available for free here every day to educate the public; just make sure you fully cite Dakota Free Press when you use it!), but plunking an entire book of legal annotations online for people to read for free probably won’t win a fair use/educational exemption argument in court… alas!
If we want to avoid copyright issues completely, we could give Code Counsel Cummings a new project: assign him twenty lawyers and interns from USD Law and direct him to produce our own publicly owned volumes of legal annotations and commentary on South Dakota Codified Law. What could be more fun than that?!
Mercer reports that Cummings told the Code Commission he’ll check with our current and previous publishers on copyright.