Copyright: Annotations to State Codes are not Protectible Works of Authorship, Placing Georgia Code Annotated in the Public Domain

Copyright: Annotations to State Codes are not Protectible Works of Authorship, Placing Georgia Code Annotated in the Public Domain

Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020).

Affirming the Eleventh Circuit-which had reversed the lower court, the Supreme Court holds that annotations to the Georgia Code are effectively produced by lawmakers, who cannot be “authors” for purposes of the Copyright Act, meaning that Lexis, which contracts with the State to license and distribute the annotated code, cannot prevent the annotated version from being placed in the public domain.

The Copyright Act grants monopoly protection for “original works of authorship.”  17 U.S.C. §102(a). Under the “government edicts” doctrine, 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.

The sole official code for the State of Georgia is the Official Code of Georgia Annotated (OCGA). It includes the text of every current Georgia statute, as well as a set of non-binding annotations that appear beneath each statutory provision. These typically include summaries of judicial opinions construing the provision and applicable state attorney general opinions, as well as a listing of relevant law review articles and other reference materials.

The OCGA is assembled by the Code Revision Commission (Commission), a state entity comprised primarily of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel. The annotations in the current OCGA were produced by Matthew Bender & Co., Inc., a division of the LexisNexis Group (Lexis), under a work-for-hire agreement with the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission. Lexis has exclusive rights to license the OCGA, subject to certain pricing limitations and on the condition that they provide a non-annotated version to the public for free.

Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government materials, posted the OCGA online and distributed copies, asserting that it was in the public domain. The Commission sent PRO various cease-and-desist letters, and then sued PRO for copyright infringement. PRO responded by seeking a declaratory judgment that the OCGA, including the annotations, fell in the public domain.

The district court sided with the Commission, holding that the annotations were eligible for copyright protection because they had not been enacted into law. The Eleventh

Circuit reversed, finding that the annotations were “sufficiently law-like” to invoke the government edicts doctrine and rejecting the Commission’s copyright assertion.

In a 5-4 opinion, the Supreme Court agreed with the Circuit and denied copyright protection. Under the government edicts doctrine, originally applied to court decisions and judges’ opinions, “no one can own the law.” For purposes of the Copyright Act, judges cannot be the “author[s]” of “whatever work they perform in their capacity” as lawmakers; similarly, because legislators, like judges, have the authority to make law, it follows that they, too, cannot be “authors.” And the prohibition applies to whatever work legislators perform in their capacity as legislators, including explanatory and procedural materials they create in the discharge of their legislative duties.

Georgia argued that excluding the OCGA annotations from copyright protection conflicted with the text of the Copyright Act, noting that §101 lists “annotations” among the kinds of works eligible for copyright protection. As the Court pointed out, however, that provision refers only to “annotations . . . which . . . represent an original work of authorship.” The annotations are prepared by a legislative body that cannot be deemed the “author” of the works it creates in its official capacity.

The opinion divided along unusual lines. Chief Justice Roberts wrote for the majority, being joined with Justices Gorsuch, Kavanaugh-and Kagan and Sotomayor. His opinion ended with the following:

Instead of examining whether given material carries “the force of law,” we ask only whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable. That is the framework our precedents long ago established, and we adhere to those precedents today.

DISSENT: Justices Thomas, Alito, Breyer and Ginsburg dissented. Justice Thomas, joined by Justice Alito, challenged the majority’s reading of seminal early cases on the government edicts doctrine and separated the intellectual process required in creating annotations from the lawmakers’ underlying legal and legislative activities. He cited the fact that nearly half of our states employ a similar construct as Georgia’s, portending more challenges to follow:

[A]fter straining to conclude that the Georgia Code Revision Commission (Commission) is an arm of the Georgia Legislature, ante, at 9-10, the majority concludes that Georgia cannot hold a copyright in the annotations that are included as part of the Official Code of Georgia Annotated (OCGA).  This ruling will likely come as a shock to the 25 other jurisdictions-22 States, 2 Territories, and the District of Columbia-that rely on arrangements similar to Georgia’s to produce annotated codes. See Brief for State of Arkansas et al. as Amici Curiae 15, and App. to id., at 1.  Perhaps these jurisdictions all overlooked this Court’s purportedly clear guidance.  Or perhaps the widespread use of these arrangements indicates that today’s decision extends the government edicts doctrine to a new context, rather than simply “confirm[ing]” what the precedents have always held.

Justice Ginsburg was joined by Justice Breyer. She wrote in part:

Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Ante, at 9 (emphasis added).  The core question this case presents, as I see it: Are the annotations in the Official Code of Georgia Annotated (OCGA) done in a legislative capacity?  The answer, I am persuaded, should be no.


This case summary is a subset of the summaries that IMLA produces for members in IMLA’s eNews and  Municipal Lawyer.