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The Supreme Court issued a 5-4 <a href="https://www.supremecourt.gov/opinions/19pdf/18-1150_7m58.pdf">decision</a> on April 27, 2020, in <em>Georgia v. Public.Resource.Org</em>, upholding the Eleventh Circuit’s ruling that the Official Code of Georgia Annotated (OCGA) is not entitled to copyright protection. The majority’s decision found that the OCGA falls under the “government edicts” doctrine: “government officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties.”

While it was uncontroversial that state statutes fall within the scope of the doctrine and are not “original works of authorship” under the Copyright Act, the official annotations of the OCGA, which are authored by lawyers employed by LexisNexis under a work-for-hire arrangement with the Georgia Code Revision Commission, posed a closer question.

The OCGA includes both the text of every Georgia statute currently in force as well as nonbinding supplementary materials such as annotations that summarize judicial decisions relating to the statutes and opinions of the Georgia Attorney General. The Code Revision Commission, on behalf of the Georgia Legislature and the state of Georgia, asserted claims for copyright infringement against Public.Resource.Org (“Public Resource”) relating to the annotations only after the nonprofit published the OCGA online in its entirety and distributed it to various officials and organizations. Public Resource counterclaimed for a declaratory judgment that the entire OCGA is within the public domain. The district court granted partial summary judgment to the Commission and enjoined Public Resource from further distribution and posting of the OCGA, finding that the annotations were protected by copyright because they “lacked the force of law.” The Eleventh Circuit reversed, determining that the annotations are government edicts “authored by the People” and not protected by copyright.

Chief Justice John Roberts, writing for the majority, reviewed the history of the doctrine, observing that while the doctrine was created to establish that judges acting in their official capacity cannot “author” the works they prepare “in the discharge of their judicial duties,” the rule applies with equal force to works created by legislators in the carrying out of their legislative duties. Under that framework, the majority held that the annotations, prepared by a private company under a work-for-hire arrangement with the Code Revision Commission under a contract that expressly vested the copyright in the Commission, were therefore “authored” by the Commission, which functions “as an arm of” the Georgia Legislature “for the purpose of producing the annotations.”

The majority opinion rejected Georgia’s arguments for copyrightability of the annotations. Georgia had first argued that “annotations” are specifically listed as eligible for copyright protection under Section 101 of the Copyright Act. The Court dismissed this argument, noting that the provision refers only to those annotations that “represent an original work of authorship.” Thus, regardless of the characterization of the annotations, the applicability of the government edicts doctrine precluded the copyrightability of the work. Georgia’s second argument was that since the Copyright Act specifically excludes works prepared by a federal government employee as part of his or her official duties from copyright protection but has no equivalent provision for state employees, a negative inference should be drawn from the distinction. The Court found that the existence of the federal rule did not “suggest an intent to displace the much narrower government edicts doctrine with respect to the States.” Finally, the Court rejected Georgia’s reliance on the Compendium of U.S. Copyright Office Practices, noting that the compendium is a mere administrative manual without the force of law and, in any event, is consistent with the application of the government edicts doctrine to the annotations at issue: “the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, <em>or similar types of official legal materials</em>” (emphasis in original).

Relying on a quasi-due process argument, the Court expressed concern that if copyright protection was extended to the annotations on the basis that the annotations do not themselves have “the force of law,” then economy-class readers would be deprived of important official annotations setting forth, for example, instances where statutes have been held unconstitutional by the Georgia Supreme Court. “Instead of examining whether given material carries ‘the force of law,’ we ask only whether the author of the work is a judge or legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable,” Roberts concluded.

Justice Clarence Thomas dissented, joined by Justice Samuel Alito, noting that the 25 jurisdictions with arrangements similar to Georgia’s could be disincentivized to “produce annotated codes altogether,” thereby creating the “economy-class” version of the law the majority found concerning. Justice Ruth Bader Ginsberg’s dissent, joined by Justice Stephen Breyer, took the position that the OCGA annotations are not “done in a legislative capacity” and so should not fall under the government edict doctrine.

The United States has long rationalized copyright monopolies as creating economic incentives for future creation. It remains to be seen whether removal of that monopoly will discourage Georgia and other states from continuing to provide annotated statutes or if that need is adequately satisfied by private companies that are vested with ownership of their annotations.

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‘No One Can Own the Law’: Supreme Court Holds Annotations to State Statutes Are Not Protected by Copyright