The Republic of Liberia’s laws have been, quite literally, lost. Due to civil war, the actual content of the country’s legislation were scattered and misplaced, and not even the Legislature has a complete collection of the law.

The chairman of the Liberian law reform commission has, however, finally assembled all of Liberia’s laws into one compilation — and he is claiming an exclusive copyright in the compilation. And he’s refusing to hand over the law until someone coughs up a sufficiently high enough sum:

[Philip] Banks sees the copyright as an altogether different tool. “These are resources that you’ve had to expend in putting all of this together, and the question is, should you be compensated? I hold the view that you should,” he asserted in his interview with FP. “And for folks that have said, no you shouldn’t, I’ve said to them, go and get your loose-leaf.”

I’m not sure why this situation is being treated as so self-evidently ridiculous. Not that I agree with his claims in the slightest, but it’s not any more absurd than a lot of the parodies of copyright claims that happen in the U.S. And to be fair to Banks, the compilation (which was begun by a U.S. professor) likely would not exist in its completed form if not for his efforts. Is there a meaningful difference between what Banks is doing and between municipal governments in the U.S. claiming a copyright in their train schedules?

However, in contrast to when such situations occur in the U.S., the FP article, and most the other commentary up, is perfectly willing to describe what Banks is doing as “taking the law hostage” and “ridiculous,” and no commentators seem inclined to accept that he has any moral rights to the data. (Whether or not he has a legal claim to the data is, for obvious reasons, rather a more difficult question.)

One thing the Foreign Policy article does not make clear (possibly because there’s no way to do so) is whether anyone in Liberia is making a distinction between copyright in the laws themselves and a copyright in the collection of the laws. Presumably, Banks can only claim the second. According to the article, “The U.S. Agency for International Development estimates that $13 million is poured into rule-of-law assistance programs in Liberia each year.” Maybe instead of pumping in millions, US AID should just go buy a copy of the laws from Banks, rearrange the compilation order, maybe add in some independent research for good measure, and then start releasing its own collection of Liberian laws under some kind of Liberian Creative Commons arrangement. It would be a cheaper way of drastically improving the rule of law in Liberia.

Or, on the other hand, why hasn’t the Liberian government just gone ahead and passed a law that clarifies that “Copyright protections are not available in any form of legislative document or compilation thereof”? Liberia’s constitution, modeled after the U.S.’s, does have prohibitions on bills of attainder and ex post facto laws, but if those clauses apply in a similar fashion to the U.S. counterparts, they would not actually prohibit the Liberian government from declaring that its copyright statutes do not apply to Liberian laws themselves. However, according to the FP article,

President Johnson Sirleaf said in an Oct. 12 interview that she is willing to entertain compensation for “whatever they may have spent out of their own resources,” but insists, “Rightfully, those copyrights belong to the government.” She hopes to have the situation sorted “within a year.”

So apparently the Liberian government is, myopically, trying to claim that they have a copyright in the laws. Which is ridiculous of them, and undermines their own cause. If the government can have a copyright in legislation, there is no principled reason (assuming Liberian law recognizes copyrights in compilations) why Banks should not be able to copyright his laboriously collected volumes of them.

In which case, I suppose, why not just go ahead and invoke constitutional prohibitions against Banks? That could be the Liberian government’s handiest solution. Under Article 15(c) of the 1984 Liberian Constitution, “there shall be no limitation on the public right to be informed about the government and its functionaries.” Allowing the Minister of Justice to keep the country’s laws secret sounds like a limitation to me.

So I’m assuming there’s something either more corrupt or more complicated going on here than the FP article suggests. Otherwise, it just doesn’t make much sense.

-Susan