| The article suffers from misuse of the term "the law", which throws the wrong focus on things. In common law countries, copyright developed in England, which has always had a concept of Crown copyright.[1] Legislation has always been subject to Crown copyright. So the answer to the article's heading is "yes, as has always been the case". However, the real problem is different: legislation often gives binding force to things not produced by the legislature. This includes texts of international treaties (in common law countries other than the US, legislation is needed to give them municipal effect), and sometimes even laws of other jurisdictions (eg many Australian legislative regimes are based on the laws of one State being "picked up" and applied as if they had been enacted by another State).[2] The particular problem is when legal force is given to a document that is produced by private parties. That document isn't a "law" in the usual sense, but legal obligations (and rights) can be imposed/created by actual laws by reference to its contents. eg: you must build to a standard, which is defined as a document produced by standards body X, and suffer a penalty or have your building liable to be demolished if you don't. The problem addressed in the article is when those non-laws are given legal effect by actual laws. It should be the case that a citizen can find the entire contents of laws that bind them. There are areas of discourse in jurisprudence about it being fundamentally unfair if there are "secret" laws that a person may contravene but cannot know about to avoid contravening. The present topic comes close - the person has to pay to know the full extent of the law that binds them. This is a policy issue, not a copyright one. Private documents like this will be subject to copyright because they are literary works.[3] The question is how to avoid the moral unfairness in one having to pay to know what one is required to do. Many solutions exist, eg compulsory licensing, a payment by the government in exchange for a creative commons style licence, etc. The counter argument is that it takes expertise, time and money to create and maintain these standards, and if standards don't cover things to do with everyday life (eg obligations for driving, laws about what you can and can't do on the street) but are restricted to things like building or industrial activities (eg earthing requirements for high voltage installations), then these aren't standards that can be contravened by chance, but only apply if you undertake project X. So if someone wants to do project X and needs to comply with a paid standard to do project X, then doing so is a cost of doing project X. TFA discusses this issue: building codes are relevant if you want to undertake building work. Should there be an extra cost of doing so, noting that you will already incur application/permit costs, inspection costs, etc in addition to the materials and labour? We have exactly this issue in Australia: things often have to be done according to Australian Standards (which now often also double as New Zealand standards), but these are supplied by a private company that produces and charges for them. eg if you want to buy the standard AS 1926.1-2012 - Swimming pool safety-Safety barriers for swimming pools, a hard copy is A$152.66 and a soft copy is A$137.39. So the question is - if someone wants to put in a swimming pool, is it wrong that they have to pay and extra amount to get a copy of the standards that they must build to? 1. https://en.wikipedia.org/wiki/Crown_copyright
2. This is a dark art, and has all sorts of conceptual and practical problems, but it is done.
3. I leave aside the massive expansion in what is protected under copyright, another policy question but one that content creators have decisively won. |
Building codes just provide precise definitions of what constitute safe construction. They aren't laws themselves.