Copyright - Durand & Associates
Should the National Fire Protection Association be Running Scared?
On June 27th the US Supreme Court refused to review the 5th U.S. Circuit Court of Appeals ruling that building codes, when enacted into law, could not be copyrighted.This would indicate (at least in the 5th circuit) that all building codes enacted into law are now in the public domain. This would include the National Electrical Code (NEC).
What is at stake here are the revenues generated from codebook sales under the exclusive control of a single organization. Prior to 1965 both the National Board of Fire Underwriters and the NFPA published the NEC. In 1965 a copy of the NEC could be purchased for $1.00. Now 40 years later the NEC cost $59.50. This is an increase of 6,000 percent.
To put this in perspective in 1965 the minimum wage was $1.25 per hour. If the minimum wage had gone up 6,000 percent the employees at McDonalds would be making $75 per hour.
The National Fire Protection Association performs a valuable service but the ever-increasing cost of the products such as the 2002 National Electrical Code seems way out of line.
Has the NFPA Use Public Domain Property?
In reviewing previous editions of the National Electrical Code (1940-1959) we found no Copyright notices on codebooks published by the National Board of Fire Underwriters (NBFU). Under US Copyright law "works first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright."
Beginning in 1956 we found codebooks published by NFPA that have a Copyright notice. This would seem to indicate that the NFPA was claiming a 1956 Copyright for the NEC even though the National Electrical Code has been in public domain since it's inception.
Is the NFPA Using Public Domain Property to Create a Monopoly?
In 1956 the NFPA began to seek royalties or license fees for reproduction or use of the National Electrical Code. A statement appears in the NFPA's 1956 edition of the National Electrical Code that allows governing bodies to republish the code, however, publication by other parties are instructed to contact the NFPA.
From 1956 through 1959 the National Board of Fire Underwriters also printed copies of the National Electrical Code. These copies contained no Copyright notice and no licensing or reproduction notices. Again the NBFU seemed to offer the National Electrical Code in the public domain.
In the 1962 the National Board of Fire Underwriters added the following statement to their printing of the National Electrical Code. "The text prepared by a committee of and copyrighted by the National Fire Protection Association, is the same as that published in NFPA No. 70, 1962 edition."
In 1965 the American Insurance Association (formerly the National Board of Fire Underwriters) discontinued the publication of the National Electrical Code. Also in 1965 through 1968 the Compson Code Company of Landsing, Michigan offered a separate printing of the 1965 National Electrical Code. This would seem to indicate the NFPA was now receiving royalties or license fees for the reproduction of the code.
From 1965 through 1975 McGraw-Hill Book Company was printing the National Electrical Code Handbook, however, we are unable to determine if McGraw-Hill paid any royalties or license fees. In 1978 the NFPA began publishing the National Electrical Code Handbook.
From 1956 through 1965 the price of the National Electrical Code remained at $1.00 per copy. After 1965 the NFPA was the sole producer of the NEC or received license fees for republications. The cost of the codebook in 1965 was $1.00 and by 1971 the cost had climbed to $3.50, which is a 350% increase. During that same time, minimum wage climbed from $1.25 per hour to $1.60 per hour or a 30% increase.
The 1965 NEC was 433 pages, and the 1971 NEC was 536 pages, an increase of 24 percent, however, the price increased 350%. Why???
NFPA Revokes Permission to Print Code as Law
In the 1987 edition of the NEC the NFPA deletes a licensing provision that allowed governing bodies to republish the code. Beginning in 1987 governing bodies that adopt the NEC into law can do so only by "Adoption by Reference." The NFPA defines "Adoption by Reference" as the citing of the title and publishing information only.
This has the effect of the NFPA claiming copyright and sole ownership of laws adopted throughout the world. It was this kind of copyright claim that prompted the 5th U.S. Circuit Court of Appeals ruling that building codes, when enacted into law, could not be copyrighted.
Let's take a look at how we got here.
1. In 1897 the first National Electrical Code was published.
2. In 1911 the NFPA took over the Code as "sponsor."
3. In 1956 the NFPA put a copyright notice on their NEC book and granted permission for governing bodies to adopt and freely re-print the Code.
4. Prior to 1962 NEC Code books published by National Board of Fire Underwriters contained no copyright notice licensing provision.
5. In 1965 the NFPA became the sole producer of the NEC or received license fees for republications. (Exception governing bodies were given permission to re-print Code)
6. In 1987 the NFPA revokes the right of governing bodies to re-print the Code.
7. In February of 2001 the 5th U.S. Circuit Court of Appeals rules that building codes, when enacted into law, cannot be copyrighted
8. June 27th the US Supreme Court refused to review the 5th U.S. Circuit Court of Appeals ruling.
Mike Holtís Comment: Interesting ...
Copyright © 2002 Mike Holt Enterprises,Inc.