I’m old
enough to remember when the building code was a slim little volume -- slipped easily
into the back pocket of my overalls. Not true now. The code comes in over a dozen flavors,
has thousands of pages and carries a price tag to match. The International Residential
Code by itself is over $100, whether on paper or by subscription. That’s OK, I
suppose. The International Code Council claims they publish the “highest quality
codes.” Maybe so. But I have a problem with what happens next.
The ICC
pushes to get their codes adopted as law in states and cities all across the US.
That’s OK too, except for one point. The ICC requires a copyright notice on each
code when adopted. In other words, the ICC claims to own the law. That would make
the building code the only law I know that isn’t free on the Web. You have buy a
copy of the code to know what the law requires.
It’s easy
to see why the states, cities and counties adopt I-Codes. They’re buying good law
on the cheap – a much better choice than drafting new law from scratch. And the
ICC is eager to deal. Every adoption means more code books sold by the ICC store.
What’s
Wrong with This Picture?
The ICC
strikes a moral, altruistic pose. They’re protecting life and property. “People
Helping People Build a Safer World.” Who can argue with that? But the ICC is also
expert at protecting its turf. Consider the intense struggle the ICC had with the NFPA for
dominance in code adoptions. More problems: The ICC is a tax-exempt non-profit organization.
But over 5% of revenue goes to executive compensation. That's a lot for a non-profit, $4 million last year. I’ll leave that issue to
the I.R.S. My complaint is that only code-enforcement officials sit on the ICC Board.
No one on the Board speaks for the public. That makes the ICC revenue model
an easy decision: The ICC writes the code. States adopt the code. The public has to buy
the code.
When government
grants a monopoly to private enterprise, regulation follows. In this case, states,
cities and counties grant a monopoly by adopting an I-Code. But they exercise no
influence I can see over ICC practice. Instead, state and municipal governments
toe the line, reproducing the ICC copyright notice on each code adopted. Is that
what government is supposed to do?
The U.S.
Compendium of Copyright Office Practices answers that question for Federal
purposes. “Edicts of government, such as judicial opinions, administrative rulings,
legislative enactments, public ordinances, and similar official legal documents
are not copyrightable for reasons of public policy.” Or, as Supreme Court Justice
Stephen Breyer said, “if a law isn't public, it isn't a law.” Any regulation the
Federal government doesn’t publish is void. So you won’t see I-Codes adopted by
Federal agencies. The same public policy should apply to states and municipalities.
But it doesn’t, at least in the opinion of the ICC. Fortunately, not every court
agrees.
In Veeck
v. Southern Bldg. Code Congress (2002), the 5th Circuit of the Court of Appeals
rejected copyright claims over model building codes that were incorporated into
Texas law. “[P]ublic ownership of the law means precisely that ‘the law’ is in the
‘public domain’ for whatever use the citizens choose to make of it.” So at least
in the 5th Circuit (Louisiana, Texas, Mississippi), a copyright notice
on a model code adopted by government doesn’t mean much. Until the U.S. Supreme
Court addresses the issue, status in other states is uncertain.
What to
Do
If I-Codes
truly make a safer world, adopted state versions should be readily available to
anyone, the same as any other law. You can view current I-Codes at the ICC site (but without printing, copying and indexing features). Public.Resource.org offers a free download
of state and municipal versions of the I-Codes. If
you agree that our law shouldn’t belong to any private company, click the button at the bottom of the Public.Resource.org home page to make a donation.
