Who Owns Virginia's Laws?

Decisions of the Supreme Court of Virginia

Open any printed volume of the Virginia Reports, examine the first several pages, and you'll be surprised at what you don't see . . . a copyright notice. These blank pages eloquently attest to the principle that the law belongs to all. What is owned by all can be owned by no one . . . not even, nor especially, the government. The Commonwealth of Virginia, to the best of our knowledge, stands alone among the states in recognizing and effectuating the principle that the law is in the public domain.

Decisions of the Court of Appeals of Virginia

The reports of the Virginia Court of Appeals bore no copyright notice through the first nineteen volumes. However, commencing with volume 20 in March, 1995, the contract for the publication of these reports was awarded to West Publishing Company. The copyright notice in that volume stated "Synopsis, Syllabi, Index, Digest and Key Number Classification Copyright © 1995 by West Publishing Co.", meaning that West made no claim of copyright upon the actual text of the opinions. However, West's copyright notice changed with volume 21 to read "Synopses, Headnotes, Index Digest, Key Number Classification and Other Editorial Features Copyright © 1995 and 1996 by West Publishing Co." (Emphasis added).

We're not sure what those "Other Editorial Features" might be that West is claiming a copyright upon. We examined the case reports in both 20 Va. App. and 21 Va. App.; we compared the materials included in the reports in 20 Va. App. with those in 21 Va. App. and there doesn't seem to be any difference. Perhaps someone from West will send us an e-mail to explain what elements are included in the term "Other Editorial Features." If they do, we'll post it right here.

It is worth noting that West has claimed a copyright in "other editorial features" in a different forum. See Matthew Bender & Co. and HyperLaw, Inc. v. West Publishing Co., No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), affirmed, __ F.3d __, , (2d Cir., 1998), cert. denied, __ U.S. ___ (1998).

The Virginia Code

The published volumes of the Virginia Code bear a copyright notice which states: "© 2000 by Matthew Bender & Company, Inc., one of the LEXIS Publishing^TM companies. All rights reserved." Despite the unrestricted scope of the quoted language, Virginia Code § 9-77.8, which authorizes the Virginia Code Commission to enter into a contract for the publication of the Code, states that the "statute text, regulation text, catchlines, historical citations, numbers of sections, articles, chapters and titles, frontal analyses and revisor's notes, shall become and remain the exclusive property of the Commonwealth to be used only as the [Virginia Code] Commission may direct." It would seem that the only thing left in the Virginia Code for Lexis to claim a copyright upon is the annotations.

The Model Jury Instructions

Inasmuch as the Model Jury Instructions were drafted by a committee of attorneys selected by, and operating under the guidance and auspices of, the Supreme Court of Virginia, we believe that those portions that were prepared by the Committee or the Court should be in the public domain. However, a May 12, 1977 contract between the Supreme Court and The Michie Company purports to give full control over all sales of the publication of The Model Jury Instructions, together with the copyright thereon, to Michie, effectively creating a monopoly. We would very much like to include the Model Jury Instructions, but in light of that contract, we are unsure as to how we should proceed.