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Legal Texts as Public Domain — A Feasibility Study

WikiDeal:legal-texts-public-domain
Study Overview
Status🚧 Draft
CountriesUSA, France, Switzerland, Kenya, Brazil
Legal basis"Nul n'est censé ignorer la loi"
Legal levelsConstitution → Codes → Regulations → Case law
Target audienceLegal professionals, citizens
Proposed licenseCC BY-SA 4.0 (wiki layer)

This article is a structured reference study on the public domain status and online availability of legal texts across five countries: the United States, France, Switzerland, Kenya, and Brazil. It is grounded in a foundational principle shared by virtually all legal systems: "nul n'est censé ignorer la loi" — "ignorance of the law is no excuse." If citizens are bound by law, then logically, they must have access to it. Yet the practical reality of accessing legal texts varies dramatically from country to country, and from one tier of legislation to another.

This study is intended primarily for legal professionals — jurists, researchers, law librarians, and open-law advocates — but is written to be accessible to anyone interested in how the law is published, who controls it, and whether it can be freely reproduced. WikiDeal's interest in this topic stems from its mission to build collaborative, openly licensed knowledge infrastructure: if laws are inherently public, they belong on a wiki.

For each country, we examine the copyright status of legal texts at every tier — constitutions, major codes, implementing regulations, administrative circulars, and case law — and assess where these texts can be found online, how easy it is to access them, and whether they can be freely reproduced on a platform like WikiDeal. Each level is rated: ✅ Easy (freely available online, clearly public domain), ⚠️ Moderate (available but with restrictions or unclear status), or ❌ Difficult (hard to find, restricted, or unclear legal status).

🏛️ Fundamental principle: The "government edicts doctrine" (US) and its equivalents in civil law systems hold that legal texts — laws, regulations, and judicial decisions produced in the course of official duties — are not eligible for copyright protection. As the US Copyright Office states: "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." This principle was reinforced by the US Supreme Court in Georgia v. Public.Resource.Org, Inc. (2020).
📚 Legal Knowledge Series — This article is part of a 3-part series on legal accessibility and WikiDeal.
  1. ⚖️ Legal Texts as Public Domain — A Feasibility Study
  2. 📡 Legal Watch & Publication Guide — Technical Proposal
  3. 🌐 Is the Law Truly Accessible? — A Digital Fairness Perspective
Contents

🇺🇸 1. United States of America

The United States has one of the strongest and most explicit legal frameworks for placing legal texts in the public domain. Two distinct but complementary doctrines apply: the government edicts doctrine (a common-law principle dating to Wheaton v. Peters, 1834) and the statutory exclusion of US government works from copyright (17 U.S.C. § 105).

Constitutional Texts

✅ Easy — The U.S. Constitution and all its amendments are in the public domain without question. They are freely available from multiple official and non-official sources.

  • Primary source: constitution.congress.gov — The official annotated Constitution from the Library of Congress
  • Alternative: National Archives
  • Copyright status: Unambiguously public domain. No copyright has ever been claimed.

Federal Statutes (United States Code)

✅ Easy — All federal legislation enacted by Congress is public domain under both the government edicts doctrine and 17 U.S.C. § 105. The entire U.S. Code is freely available online in multiple formats.

  • Official source: uscode.house.gov — Office of the Law Revision Counsel
  • Alternative official: GovInfo.gov — Government Publishing Office (full text, PDFs, XML)
  • Third party: Cornell LII — Legal Information Institute (searchable, annotated)
  • Code of Federal Regulations (CFR): eCFR.gov — all federal regulations, updated daily
  • Copyright status: Public domain. The text of 17 U.S.C. § 105 states: "Copyright protection under this title is not available for any work of the United States Government."

State-Level Legislation

✅ Easy (with caveats) — State constitutions, statutes, and regulations are public domain under the government edicts doctrine, as confirmed by the Supreme Court in Georgia v. Public.Resource.Org, Inc. (2020). However, online availability varies by state.

  • All 50 states publish their statutes online, but quality and searchability vary significantly
  • Some states contract with commercial publishers (e.g., LexisNexis, Westlaw) who add copyrightable annotations, headnotes, and organizational features — the raw statutory text remains public domain, but the annotated versions may not be
  • Good examples: California (leginfo.legislature.ca.gov), New York (nysenate.gov)
  • Municipal codes: Increasingly available via platforms like Municode and American Legal, though some are behind paywalls

Administrative Regulations & Circulars

✅ Easy — Federal administrative regulations are published in the Federal Register and codified in the CFR. All are public domain.

  • Federal Register: federalregister.gov — daily publication of rules, proposed rules, and notices
  • Agency guidance: Most federal agencies publish guidance documents, policy manuals, and circulars on their websites. These are generally public domain as government works.
  • State regulations: Availability varies. Many states publish administrative codes online, but some lag behind.

Case Law / Jurisprudence

✅ Easy (federal) / ⚠️ Moderate (state) — Federal judicial opinions are public domain. State court opinions are also public domain under the government edicts doctrine, but online accessibility varies.

  • Federal courts: PACER/CM/ECF — provides access to federal court records (small per-page fee applies)
  • Supreme Court: supremecourt.gov — all opinions freely available
  • Free alternatives: CourtListener / RECAP (Free Law Project) — millions of opinions, free and open
  • Google Scholar: scholar.google.com — includes a "Case law" tab with extensive coverage
  • Copyright status: All judicial opinions (federal and state) are public domain. However, commercially published reporters add copyrightable features (headnotes, key numbers, etc.).
Summary for USA: The United States is the gold standard for open access to legal texts. Both statute and doctrine ensure that the raw text of all laws, regulations, and judicial opinions — at every level of government — is in the public domain. The main challenges are practical (fragmentation across 50+ jurisdictions, PACER fees, annotated versions) rather than legal.

🇫🇷 2. France

France follows the civil law tradition where the principle of "nul n'est censé ignorer la loi" originates. French intellectual property law (Code de la propriété intellectuelle, Art. L. 122-5) explicitly excludes official texts from copyright protection. France also has one of the world's most comprehensive and well-organized online legal databases: Légifrance.

Constitutional Texts

✅ Easy — The Constitution of the Fifth Republic (1958), the Declaration of the Rights of Man and of the Citizen (1789), and the Preamble to the Constitution of 1946 are all freely available and in the public domain.

Major Codes (Civil Code, Penal Code, Commercial Code, etc.)

✅ Easy — France's codified law (37 major codes) is entirely available online through Légifrance in consolidated, up-to-date form. This is one of the most successful examples of open legal data in the world.

  • Primary source: Légifrance — All Codes — includes the Civil Code, Code of Commerce, Code du Travail, Code Pénal, and 33 other codes
  • Features: Consolidated texts, version history, cross-references, links to case law
  • Open data: Since 2014, Légifrance data is available as open data under the Licence Ouverte / Open Licence (French government open data license)
  • API access: PISTE (API platform) provides programmatic access to Légifrance data
  • Copyright status: Not copyrightable. French law (Art. L. 122-5 CPI) and European case law confirm that legislative texts are not subject to copyright.

Implementing Regulations & Administrative Circulars

✅ Easy — Decrees (décrets), orders (arrêtés), and circulars (circulaires) are all published on Légifrance and in the Journal Officiel.

  • Journal Officiel: legifrance.gouv.fr/jorf — official gazette, published daily
  • Circulars: circulaires.legifrance.gouv.fr — dedicated portal for administrative circulars
  • Copyright status: Public domain. Administrative texts are official acts and cannot be copyrighted.

Case Law / Jurisprudence

✅ Easy (major courts) / ⚠️ Moderate (lower courts) — The jurisprudence of France's highest courts is freely available online. Lower court decisions are increasingly available but coverage is not exhaustive.

  • Cour de cassation: Judilibre — free access to decisions since 1790, with modern search engine (launched 2021)
  • Conseil d'État: conseil-etat.fr — administrative supreme court decisions
  • Conseil constitutionnel: conseil-constitutionnel.fr — constitutional review decisions (QPC, etc.)
  • Légifrance: Légifrance jurisprudence — cross-court search
  • Open Justice initiative: France has been progressively opening court decisions under the loi pour une République numérique (2016) and subsequent decrees, requiring pseudonymized publication of all court decisions. This is a multi-year rollout.
  • Copyright status: Judicial decisions are not copyrightable in France. They are official acts of public authority.
Summary for France: France is excellent for open access to legal texts. Légifrance is a world-class platform providing free, consolidated, and machine-readable access to virtually all legislation, regulations, and major court decisions. The open data initiative further enhances reusability. The main gap is lower court decisions, which are being progressively opened.

🇨🇭 3. Switzerland

Switzerland, as a federal state with 26 cantons, presents a layered legal landscape. Swiss copyright law (Bundesgesetz über das Urheberrecht, URG, Art. 5 para. 1) explicitly states that official texts of a legislative, administrative, or judicial nature — as well as international treaties — are not protected by copyright. Federal law is exceptionally well-organized online through the Fedlex platform.

Constitutional Texts

✅ Easy — The Federal Constitution of the Swiss Confederation (1999, as amended) is freely available in all four national languages (German, French, Italian, Romansh) and in English.

  • Primary source: Fedlex — Federal Constitution (English)
  • Cantonal constitutions: Each canton publishes its constitution on its official website. All are public domain under Art. 5 URG.
  • Copyright status: Explicitly not protected. Art. 5 para. 1 URG: "Acts of a legislative, administrative, or judicial nature, as well as the corresponding drafts, are not protected."

Federal Codes and Laws

✅ Easy — All Swiss federal legislation is published on Fedlex (formerly admin.ch), organized in the Recueil systématique du droit fédéral (Classified Compilation of Federal Legislation, RS/SR).

  • Classified Compilation (RS/SR): fedlex.admin.ch — Classified Compilation — all current federal legislation, consolidated
  • Official Compilation (RO/AS): fedlex.admin.ch — Official Compilation — chronological publication of new and amended acts
  • Key codes: Swiss Civil Code (ZGB/CC), Code of Obligations (OR/CO), Swiss Criminal Code (StGB/CP) — all freely available
  • Formats: HTML, PDF, XML, and JSON-LD (linked open data). Fedlex provides structured data and stable URIs following the European Legislation Identifier (ELI) standard.
  • Copyright status: Not protected by copyright under Art. 5 URG.

Cantonal Legislation

✅ Easy (major cantons) / ⚠️ Moderate (smaller cantons) — All 26 cantons publish their legislation online, but the quality of online platforms varies. Major cantons have excellent systems.

Administrative Regulations & Circulars

⚠️ Moderate — Federal ordinances and administrative circulars are generally accessible through Fedlex, but some agency-specific circulars (especially from FINMA, tax authorities, etc.) may be less systematically organized online.

  • Federal Council ordinances: Published on Fedlex alongside the parent legislation
  • Tax circulars: Federal Tax Administration (ESTV) — publishes circulars, but navigation can be complex
  • Copyright status: Not protected as official texts.

Case Law / Jurisprudence

✅ Easy (Federal Supreme Court) / ⚠️ Moderate (cantonal courts)

  • Federal Supreme Court (BGer/TF): bger.ch — all decisions since 2000, searchable. Leading decisions (Leitentscheide / ATF/BGE) published since 1875.
  • Federal Administrative Court: bvger.ch
  • Federal Criminal Court: bstger.ch
  • Cantonal courts: Most publish decisions on their websites, but coverage varies. The cantons of Zurich, Bern, and Geneva have good online jurisprudence databases.
  • Copyright status: Not protected as judicial decisions fall under Art. 5 URG.
Summary for Switzerland: Switzerland has very good open access to legal texts. Art. 5 URG provides an explicit and broad exclusion from copyright. Fedlex is a modern, well-structured platform with linked open data. Cantonal access is generally good but fragmented across 26 different systems. The main challenge for a wiki project would be managing the multilingual dimension (DE/FR/IT/RM).

🇰🇪 4. Kenya

Kenya, as a common-law jurisdiction (inherited from British colonial rule), follows a legal tradition where Crown copyright historically applied to legislation. However, Kenya's Copyright Act (No. 12 of 2001, as amended) and the Constitution of Kenya (2010) reflect a progressive approach to public access. The National Council for Law Reporting (Kenya Law) has been a pioneer in East Africa for making legal texts freely available online.

Constitutional Texts

✅ Easy — The Constitution of Kenya (2010) is widely available online and has been distributed in print, digital, and simplified versions. It is treated as a public document accessible to all citizens.

  • Primary source: Kenya Law — Constitution
  • National Council for Law Reporting: kenyalaw.org — Kenya's official legal information institute
  • Copyright status: While Kenya does not have an explicit statutory exclusion for government works comparable to 17 U.S.C. § 105, the Constitution is treated as a public document. The Kenya Copyright Act does not explicitly exclude government edicts, but in practice, the Constitution is freely distributed and reproduced.

Acts of Parliament (Statutory Law)

✅ Easy — Kenya Law publishes the complete Laws of Kenya online, including all Acts of Parliament in their revised (consolidated) form.

  • Laws of Kenya: kenyalaw.org — Laws of Kenya — complete set of revised statutes
  • Kenya Gazette: kenyalaw.org — Kenya Gazette — official government gazette
  • Copyright note: Kenya Law is established under the National Council for Law Reporting Act and has a mandate to publish and disseminate legal information. However, the copyright framework technically allows Crown-style copyright on government publications. In practice, Kenya Law makes everything freely accessible.

County-Level Legislation

⚠️ Moderate — Kenya's 47 counties have the power to enact county legislation. Access to county laws is less systematic than national legislation.

  • Kenya Law: Has been progressively adding county legislation to its database, but coverage is incomplete
  • County websites: Quality and availability of legal texts on individual county government websites varies significantly
  • Challenge: Many county laws exist only in gazette notices and may not be easily searchable online

Administrative Regulations & Subsidiary Legislation

⚠️ Moderate — Subsidiary legislation (regulations, rules, orders made under enabling Acts) is published in the Kenya Gazette and progressively compiled on Kenya Law, but coverage of older instruments may be incomplete.

Case Law / Jurisprudence

✅ Easy — Kenya Law provides one of the best free case law databases in Africa, covering decisions from the Supreme Court, Court of Appeal, High Court, and some tribunals.

  • Kenya Law Reports: kenyalaw.org — Case Law — searchable database of decisions
  • Coverage: Extensive coverage from 2010 onward; historical decisions are being digitized
  • AfricanLII: africanlii.org — a member of the Free Access to Law Movement, provides additional access to Kenyan and other African jurisprudence
  • Copyright status: Judicial decisions are generally treated as public documents, though the exact copyright status under Kenyan law is less clearly established than in the US or civil law systems.
Summary for Kenya: Kenya has good open access to legal texts, thanks largely to Kenya Law's excellent online platform. The main challenges are: (1) the copyright framework does not explicitly exclude government works, creating potential ambiguity; (2) county-level and older subsidiary legislation may be incomplete online; (3) historical digitization is ongoing. For a wiki project, Kenya Law's content would be the primary source, but copyright permissions might need to be clarified.

🇧🇷 5. Brazil

Brazil, as a federal republic with 26 states and a Federal District, follows the civil law tradition. Brazilian copyright law (Lei nº 9.610/1998, Art. 8) explicitly excludes certain categories of works from copyright protection, including texts of treaties, laws, decrees, and judicial decisions.

Constitutional Texts

✅ Easy — The Constitution of the Federative Republic of Brazil (1988, as amended) is freely available online in Portuguese and in unofficial English translations.

  • Primary source: planalto.gov.br — Constituição
  • English translation: STF — English translation (PDF)
  • State constitutions: Each state publishes its constitution on its official legislative assembly website. All are public domain under Art. 8 of Lei 9.610/1998.
  • Copyright status: Explicitly excluded from copyright. Art. 8, item IV of Lei 9.610/1998: "The following are not subject to copyright protection: ... legislative, administrative, and judicial texts, as well as their official translations."

Federal Codes and Laws

✅ Easy — All Brazilian federal legislation is published on the Presidency's official portal (Planalto), which maintains a comprehensive and freely accessible database.

  • Primary source: planalto.gov.br — Legislação — complete federal legislation database
  • Key codes: Civil Code (Lei 10.406/2002), Penal Code (Decreto-lei 2.848/1940), Code of Civil Procedure (Lei 13.105/2015), Consumer Protection Code (Lei 8.078/1990) — all freely available
  • LexML: lexml.gov.br — a linked-data portal aggregating Brazilian legal norms from all levels of government, using structured legal XML
  • Copyright status: Not protected under Art. 8 of Lei 9.610/1998.

State-Level Legislation

✅ Easy (major states) / ⚠️ Moderate (smaller states) — Most Brazilian states have online legislative databases, though quality varies.

  • São Paulo: al.sp.gov.br — Legislação
  • Rio de Janeiro: alerj.rj.gov.br
  • Municipal legislation: LexML indexes municipal legislation, though coverage of smaller municipalities may be incomplete
  • Challenge: Brazil has 5,570 municipalities. While major cities have good online legal databases, smaller ones may not publish their legislation systematically online.

Administrative Regulations & Normative Acts

✅ Easy (federal) / ⚠️ Moderate (state/municipal)

  • Official Gazette (DOU): in.gov.br — Diário Oficial da União — official federal gazette, published daily, searchable online
  • Regulatory agencies: ANVISA, ANATEL, CVM, etc. — each publishes its normative acts on its website
  • Copyright status: Not protected as administrative texts.

Case Law / Jurisprudence

✅ Easy — Brazil has excellent free online access to judicial decisions, particularly from the superior courts.

  • STF (Supreme Federal Tribunal): portal.stf.jus.br — Jurisprudência — all decisions searchable
  • STJ (Superior Court of Justice): stj.jus.br — Jurisprudência
  • TST (Superior Labour Court): tst.jus.br
  • State courts (TJs): Each state court of justice (Tribunal de Justiça) publishes decisions on its website. Coverage is generally good for recent decisions.
  • JusBrasil: jusbrasil.com.br — private platform aggregating legislation and case law (free tier with limited access, premium subscription for full access)
  • Copyright status: Not protected under Art. 8 of Lei 9.610/1998.
Summary for Brazil: Brazil has very good open access to legal texts. Art. 8 of the Copyright Law provides an explicit exclusion for legislative, administrative, and judicial texts. The Planalto portal and superior court websites provide comprehensive free access. LexML is an innovative linked-data project. The main challenges are the sheer volume (federal structure with 26 states and 5,570 municipalities) and the language barrier (Portuguese only, with limited official translations).

Several attempts have been made to create wiki-style platforms for legal knowledge. Their mixed track records offer important lessons for WikiDeal.

JurisPedia (2004–2023) — Defunct

JurisPedia was a wiki-based online encyclopedia of academic law, available in multiple languages (Arabic, Chinese, English, French, German, Spanish, Dutch). Launched in October 2004, it was developed through a collaboration between the African Legal Information Institute, Can Tho University (Vietnam), Université du Québec à Montréal, Saarland University (Germany), and Paul Cézanne University (France). It ran on MediaWiki software but was not a Wikimedia Foundation project.

Free Access to Law Movement (FALM)

The Free Access to Law Movement is the umbrella organization for Legal Information Institutes (LIIs) worldwide. Founded in 1992 with the creation of the Cornell Legal Information Institute, it now has 63+ member organizations providing free access to law in over 120 jurisdictions.

Other Initiatives

7. Conclusion — Feasibility Assessment for WikiDeal

Summary Matrix

Country Constitution Codes / Statutes Regulations Sub-national Case Law Explicit PD?
🇺🇸 USA ✅ ✅ ✅ ✅ ✅ Yes (statute + doctrine)
🇫🇷 France ✅ ✅ ✅ N/A (unitary) ✅ Yes (CPI Art. L.122-5)
🇨🇭 Switzerland ✅ ✅ ⚠️ ✅ ✅ Yes (URG Art. 5)
🇰🇪 Kenya ✅ ✅ ⚠️ ⚠️ ✅ Implicit only
🇧🇷 Brazil ✅ ✅ ✅ ✅ ✅ Yes (Lei 9.610 Art. 8)

Key Findings

  1. Legal texts are generally in the public domain. Four of five countries studied (USA, France, Switzerland, Brazil) have explicit statutory provisions excluding legal texts from copyright. Kenya lacks an explicit provision but treats legal texts as publicly accessible in practice.
  2. Online availability is already excellent. All five countries have official, free online databases for their primary legislation and major court decisions. The infrastructure already exists — the question is whether a wiki layer adds value.
  3. Sub-national and administrative texts are the weak spots. State/cantonal/county legislation and lower-level administrative circulars are the areas where access is most uneven. This is where WikiDeal could add the most value.
  4. Previous legal wiki projects have failed. JurisPedia's demise (2023) after nearly two decades shows that academic-driven, non-commercially-licensed projects are difficult to sustain. WikiDeal's CC BY-SA model and community-driven structure may offer better long-term prospects.
  5. Language is a major barrier. Except for the USA (English) and partially Switzerland (trilingual), the other jurisdictions primarily publish in their national language. Translation infrastructure would be essential.

Recommendation for WikiDeal

Hosting legal texts on WikiDeal is feasible and legally sound for all five countries studied. The approach should be:

The key value proposition of WikiDeal is not merely hosting the raw text of laws (which governments already do), but providing annotation, comparison, translation, accessibility, and community-maintained updates — the same model that makes Wikipedia more useful than any single national encyclopedia.

📚 Legal Knowledge Series — This article is part of a 3-part series on legal accessibility and WikiDeal.
  1. ⚖️ Legal Texts as Public Domain — A Feasibility Study
  2. 📡 Legal Watch & Publication Guide — Technical Proposal
  3. 🌐 Is the Law Truly Accessible? — A Digital Fairness Perspective
See also: 📡 Legal Watch & Publication Guide · 🌐 Law & Digital Fairness · 🔓 Free Licensing · Glossary