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A US lawyer has claimed that copyright is violated when courts pass legal submissions on to a commercial publisher. The lawyer claims that the US courts' behaviour undermines the hundreds of hours of work put into submissions.

An intellectual property law expert at Pinsent Masons, the law firm behind OUT-LAW.COM, said that an exemption in UK copyright law would be likely to protect such publication of writs over here.

Edmond Connor of California law firm Connor, Fletcher and Williams has written to California's Chief Justice Ronald George and its administrative director of courts, William Vickrey, to demand that they stop passing submissions to legal publishers LexisNexis and Westlaw.

"I am not exaggerating when I say that I was shocked to learn… that copies of all appellate briefs served on the Supreme Court were being routinely handed over to Westlaw and Lexis," he wrote in his letter. "Our firm was surprised to learn that a 143-page brief that had taken us hundreds of hours to prepare in an employment discrimination case that we were handling on behalf of an indigent client was being marketed and sold to other attorneys."

"To my knowledge the Supreme Court's practice of turning all appellate briefs over to Westlaw and Lexis has never been publicly disclosed and I believe that few, if any, attorneys in California know anything about this arrangement," wrote Connor. "The unrestricted distribution of briefs to Westlaw and Lexis directly aids them in infringing the copyrights held by the attorneys who authored those briefs."

Connor proposed a system which would allow lawyers to control whether or not their briefs were sent to the publishing companies and would enable them to share in earnings for those that were.

"If there are profits to be made in making appellate briefs available online, then the vendors of those briefs should share those profits with the authors of the briefs," he said.

Connor said that one of the lawyers at his firm researched whether or not copyright was infringed by the legal publishers and concluded that it was.

"The authors of briefs filed with the California Courts hold valid, enforceable copyrights in their briefs, and... Lexis and Westlaw have engaged in massive copyright infringement by copying and distributing those briefs for profit without seeking the copyright holders' consent," he wrote.

Iain Connor, an intellectual property specialist at Pinsent Masons, the law firm behind OUT-LAW.COM, said that publishers would be likely to be allowed to make such material available in the UK.

"Copyright exists in a writ or a court filing in the usual way because they are original works. However, the legislation contains a 'fair use' exemption for work done both for the purposes of judicial or parliamentary proceedings and the reporting of them," he said.

The exemption, at section 45 of the Copyright, Designs and Patents Act, is for "anything done for the purposes of parliamentary or judicial proceedings". It also says that copyright is not infringed by anything done for the purposes of reporting proceedings, but that this does not authorise the copying of a work which is itself a published report of the proceedings.

"If a publisher like LexisNexis publishes a detailed analysis of a writ, it can argue that it is reporting the proceedings, but it will enjoy copyright protection in its own analysis," he said. "Further, the fair use exemption specifically says that it does not allow people to copy someone's report of the proceedings."

"So another person won't infringe copyright if their work is either for a court case or reporting on it but the writ and court filings retain their copyright protection in other contexts," he said.

Though it is most likely lawful for publications to publish filings as part of their reporting of judicial proceedings, then, it is less clear whether another lawyer's use of those filings for their own purposes would be lawful or not, he said.

"The law is ambiguous on whether someone else would infringe copyright if they copied your writ as a precedent for their own lawsuit," said Pinsent Masons' Connor. "The answer depends on whether or not the courts would see that as fair use being for the purpose of judicial proceedings and therefore exempt from copyright law or not."

The copyright in court judgments, as opposed to filings, is widely believed to belong to the Crown. The terms of Crown copyright notices generally state that judgments can be reproduced provided they are reproduced accurately and not used in a misleading context and provided the source is identified and the copyright status acknowledged. Some judges have disputed the Crown's ownership of copyright in their judgments, though. A group of judges have claimed that they are not servants of the Crown and that their judgments are in the public domain.

A copy of Edmond Connor's letter can be read here.

A pdf of a submission by Professor Philip Leith to the Gowers Review on copyright in court judgments can be read here.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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