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Are Construction Codes Copyrightable?

7/10/20

By: Catherine Bednar and Kathleen Cusack

A case pending in the Southern District of New York is exploring the question of whether model construction codes can be copyrighted.  The case, International Code Council v. UpCodes, was filed in 2017 and debates whether various construction codes that were drafted by a non-governmental entity, International Code Council (ICC), are protectable by copyright. 

ICC is a non-profit corporation that develops model codes, which it calls “I-Codes”.  I-Codes include, for example, the International Building Code, International Plumbing Code, International Mechanical Code and International Zoning Code.  ICC develops the I-Codes and routinely publishes updated versions to reflect changes in the industry.  ICC offers users free copies of current codes, as well as versions of a few select codes showing historical changes.  ICC allows jurisdictions to incorporate I-Codes by reference rather than draft unique codes and standards. 

While UpCodes provides free access to the I-Codes, it charges users for the ability to search, bookmark, highlight, and comment.  ICC claims that UpCodes infringed its copyrights by posting: (1) I-Codes online without ICC’s permission, (2) state and local building codes that incorporate I-Codes by reference, and (3) unadopted model code with “redline” formatting to show differences in state or local codes.  On May 26, 2020 the Southern District of New York denied both parties’ motions for summary judgment.  Although the May 26 decision is not the final ruling in the case, the court noted that “if Defendants are liable for copyright infringement, it will not be for accurate copying of the I-Codes as adopted [into law].” 

In its decision, the district court relied on a recent Supreme Court decision published in April 2020, Georgia v. Public.Resource.Org.  In that case, the Supreme Court held that annotations to public code that were drafted under the supervision of the Georgia legislature were ineligible for copyright protections because they are not “original works of authorship” as defined in the Copyright Act.  Following the logic of earlier Supreme Court precedent that legal explanations are not copyrightable if penned by judges who possess authority to make and interpret the law, the court held that explanatory legal materials created by a legislative body are similarly ineligible.  The court explained, “If judges, acting as judges, cannot be ‘authors’ because of their authority to make and interpret law, it follows that legislators, acting as legislators, cannot be either. . . . In the same way that judges cannot be authors of their headnotes and syllabi, legislators cannot be the authors of (for example) their floor statements, committee reports, and proposed bills.” The Court was unpersuaded by Georgia’s argument that annotations in all forms are protectable, explaining that the pertinent question was authorship rather than the type of work produced.

The ICC v. UpCodes case differs from Georgia v. Public.Resource.Org. because the ICC is not a governmental body.  UpCodes is nonetheless encouraged by the Supreme Court case, citing it as validation that “no one can own the law.” The Southern District of New York noted in its May 26 judgement, however, that simply because “a law references a privately-authored, copyrighted work does not necessarily make that work ‘the law,’ such that the public needs free access to the work.”  The court specified that such a work might become the law if, for example, the private author intended the work to be adopted into law, “the work comprehensively governs public conduct,” the work expressly regulates an industry, the work provides for penalties or sanctions in the event that its rules are violated, and the work is identified as part of the law rather than as a copyrighted work.

The ongoing ICC v. UpCodes litigation will resolve the fact-dependent questions as to what was copied and whether UpCodes violated copyright law. The decision in ICC v. UpCodes could create cost-saving opportunities for members of the construction industry, who must often purchase multiple codes governing their projects.

If you have questions or would like more information, please contact Catherine Bednar at cbednar@fmglaw.com or Kathleen Cusack at kcusack@fmglaw.com.