Copyright Protection of Government-Related Material Before the Courts of the United States and Canada: Considerations for Future Reforms

Copyright protection of government-related materials lies at the intersection of private incentives, public interest, and political motivation. These interests naturally clash. Therefore, the justification and scope of copyright protection for such materials has been subject of intense controversy ever since. Recently, the Supreme Court of the United States and the Supreme Court of Canada handed down landmark decisions on the application of the relevant century old doctrines and provisions. Moreover, U.S. and Canadian courts have lately addressed the protectability of privately created government-adopted industry standards. This article takes these decisions as an occasion to reflect on the copyright protection of government-related materials before the background of the rapid technological advancement and the substantial ongoing societal and political change. Taking into account the regulatory experiences in the EU, this article questions the prevalent assumptions of trustworthy state action and undistorted functioning of markets, which considerably underly the design of current government copyright regimes around the globe. In this light, the article aims to provide avenues for future legislative reforms that address the copyright of government-related materials. It suggests a more focused, nuanced, and holistic regulatory approach for strengthening and maintaining open, democratic societies.