Is republishing building codes copyright infringement? ICC v. UPCODES

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. The reason that fair use exists is that copyright law is intended to promote the advancement of the arts and sciences, a fair use of copyrighted matter is a use that promotes advances. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

Even though the United States government grants copyrights, the government does not retain copyright to its own works. A work of the United States government, as defined by the United States copyright law, is “a work prepared by an officer or employee” of the federal government “as part of that person’s official duties.” In general, under section 105 of the Copyright Act, such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

The United States government has a diverse array of laws and regulations. Changing those laws and regulations can be time consuming. When the government wishes to regulate and industry, frequently standard industry definitions are incorporated into the regulations. Things like fire code, electrical code, and building standards are defined by groups of industry experts that define best industry practices. These industry groups are entitled to copyright protection when they create a book of standards. The question then becomes, when a law or regulation adopts a standard that was written by by a private part is it copyright infringement to republish that law?

INTERNATIONAL CODE COUNCIL, INC. v. UPCODES, INC., 17-cv-6261 (S.D.NY 2020) is a case which touches on this question.

Plaintiff develops model codes for use in the construction industry. Plaintiff has developed a number of different codes which have been widely adopted by local governments as the standard to which new construction must conform. Plaintiff provides free, read-only access to the material it has developed and licenses the material it has developed, such as training materials.

Defendant, is a start-up company that aims to provide convenient online access to materials used in the architecture, engineering and construction industries. At various times, Defendant reproduced verbatim copies of ICC codes that were adopted into law by state or city governments. Defendants also make available to paying subscribers versions of ICC codes that depict in redline sections of the model codes that were not adopted into law. This allows a user to quickly note the differences between the model code and the version of the code adopted by the municipality.

Plaintiffs sued Defendants for reproducing and distributing its copyrighted work. At trial Plaintiff and Defendant both moved for summary judgement in their favor. The Court concluded that the ICC codes which were adopted as law where in the public domain and that fair use favored the Defendant because disseminating enacted laws to the public was transformative. With respect to the redline version of the ICC codes that compared the adopted law with the version published by the Defendant the Court reviewed each of the fair use factors in turn. The first fair use factor did not favor either party because distributing text which was not enacted law to paying customers was not transformative. The second factor favored fair use because the ICC codes were primarily factual. The third factor weighed against fair use because Defendant could have educated the public without including the sections of the ICC code which were not adopted as law. How the Defendant’s actions affected the market for the ICC code was also unclear, so the Fourth fair use factor did not favor either party.

The Court declined to grant either party’s motion for summary judgement because the facts of the case did not clearly favor either party.

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