IP Law Daily High Court mulls copyrightability of Official Code of Georgia Annotated
Monday, December 2, 2019

High Court mulls copyrightability of Official Code of Georgia Annotated

By Cheryl Beise, J.D.

Copyrightability of annotations may depend on the legal weight of the descriptor "official."

The Supreme Court today heard oral arguments in a case involving whether the Official Code of Georgia Annotated ("OCGA" or "Code") is entitled to copyright protection. At issue is a decision by the U.S. Court of Appeals in Atlanta, holding that the Code, along with the accompanying official annotations, comprise public domain materials that are inherently uncopyrightable. The Justices appeared to be concerned about the extent to which the annotations—included as part of the Official Code—carried the force of law. They also grappled with the pertinence of Supreme Court precedent—albeit well more than a century old—affirming the copyrightability of headnotes and annotations appended to judicial opinions.

Joshua S. Johnson (Vinson & Elkins LLP) argued on behalf of the petitioner, the State of Georgia; Eric F. Citron (Goldstein & Russell, P.C.) appeared for respondent Public.Resource.Org, Inc.; and Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, presented the views of the United States as amicus curiae.

The dispute arose when the not-for-profit organization Public.Resource.Org ("Public Resource") published all 186 printed volumes and supplements of the OCGA on its website, law.resource.org, free of charge. Georgia’s Code Revision Commission ("Commission") and the State of Georgia (together, "the State") sued Public Resource for direct and indirect copyright infringement. In 2017, the federal district court in Atlanta granted summary judgment to the State. The court concluded that the annotations were copyrightable and that Public Resource’s publication of the OGCA was infringing. The court rejected Public Resource’s fair use defense and issued a permanent injunction barring further publication. The Eleventh Circuit reversed the district court’s judgment and vacated the injunction. According to the appeals court, the annotations in the OCGA, while not having the force of law, are part and parcel of the law because they have been made an inextricable part of the official codification of Georgia’s laws. As such, the OCGA annotations constitute legislative works created by Georgia’s legislators in the exercise of their legislative authority, thereby making "the People" the ultimate author of the annotations. In concluding that the OGCA had the hallmarks of law, the Eleventh Circuit examined the identity of the public officials comprising the Commission that approved the work, the authoritativeness of the work, and the process by which the work was created. The state of Georgia filed a petition asking the Court to decide "[w]hether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated."

State of Georgia argument. Sections 101 and 103 of the Copyright Act expressly provide that annotations are copyrightable derivative works. Referring to the Court’s nineteenth century precedents—the last time the Court considered copyrightability of government works, Johnson observed that while judicial opinions are not copyrightable, annotations added to opinions by a court’s official reporter are copyrightable works of authorship. "Similarly, while statutory text is not copyrightable, annotated research references are eligible for copyright protection, even if they appear in an official code book like the OCGA," he said. Johnson added that affirming the decision below would scuttle numerous states’ regimes for publishing annotated official codes.

Chief Justice Roberts asked Johnson to address the significance of the fact that the annotations are considered "official" by the state of Georgia. Johnson replied that the Code itself is what is considered "official," not the annotations. The fact that the annotations appear in the same publication doesn’t make a difference for copyright purposes, he said.

Justice Ginsburg asked Johnson to explain why the state legislature—the author of the annotations—is not like a judge writing a syllabus. Johnson contended that the annotations are different because they are not enacted by the legislature through the process of bicameralism and presentment, but are authored by a contractor, a commercial publisher, without the supervision of the Code Revision Commission. Judge Ginsburg followed up with a question about why the annotations are not considered a work for hire. Johnson conceded that the Code Revision Commission, acting on behalf of the state, obtains a copyright for the state.

Justice Gorsuch pointed out that the Georgia legislature does approve the annotations as a whole. Johnson explained that the legislature passes an annual "reviser act, and the reviser act reenacts the code, including OCGA 1-1-1, which calls for the statutory text to be merged with the annotations." However, noting that placing the work "official" on the work as a whole likely served to create some value for the reporter, Justice Gorsuch pointedly asked "why would we allow the official law to be hidden behind a pay wall?" Johnson said that the Code was available free of charge on Lexis’s website. He added that the annotations are not the law, "so the law is not behind a paywall."

Justice Gorsuch next asked, "Aren’t [the annotations] frequently used by state courts as indications of the legislature’s intentions?" Johnson said that the annotations are not used as authoritative. Justice Gorsuch pressed, "So you’re disavowing that they’re ever used by state courts as indications of legislative intent? That never happens?"

"The annotations would never be used as an indication of legislative intent like you would cite legislative history material," Johnson said.

Justice Alito asked whether that notion also applied to annotations authored by the Georgia Bar Committee to the Code Revision Commission. Johnson said that the annotations prepared by the Georgia Bar are more in the nature of comments, not annotations and that Georgia courts "have treated them as having some authoritative weight."

Following up on Justice Gorsuch’s line of questions, Justice Sotomayor asked why authorship—or in this case, a work made for hire by a contractor at the behest of the legislature—is not the most important factor. "The state is the one who’s requiring this to be done. It reviews it. It approves it. It is setting it out there as a merged document with the actual laws," she said. Justice Sotomayor noted that a law clerk who writes a headnote for a judge cannot get a copyright in the headnote.

Justice Breyer commented, "If a legislator does something or a group of legislators in their legislative capacity, it is not copyrightable. I mean, who cares who the author is? There are public policy reasons that have existed forever in the law that you make those two things not copyrightable."

United States argument. Next, Anthony Yang presented the government’s position, supporting the State of Georgia based on the authorship argument. Referring to the annotations as "research aids," Yang said this case is controlled by the Court’s decision in Callaghan v. Myers, 128 U.S. 617 (1888), which "upheld a copyright in annotations to judicial decisions by an official court reporter, a salaried public officer of the court, who was appointed and removable by the court." Yang noted that of the of the 15 individual members of the Commission, five occupy non-legislative positions. He explained that the annotations accurately describe judicial sources, attorney general opinions, and other secondary materials, such as law review articles relevant to a particular citation.

Justice Gorsuch asked whether the annotations would be copyrightable if they were authored by the legislature. Yang admitted that such a hypothetical is "a little more complicated."

Public Resource argument. Eric Citron began by reframing the question as whether the government edicts doctrine extends to documents that lack the force of law. Citron responded in the affirmative. Drawing on language used by the Court in prior decisions, Citron proposed a test for determining whether the government edits doctrine applies: "Is this a legal work and is it published under the authority of the state?" If the answer is "yes," then the work cannot be copyrighted.

Justice Breyer asked whether the state of Georgia could obtain a copyright in a book about the official history of Georgia if it was written by an historian hired by the state. Citron agreed that this type of work would be copyrightable. But as a nonlegal work, this would fail the test he proposed.

In response to questions by Justices Kagan and Kavanaugh, Citron emphasized that "[t]he undisputed material facts are that all the materials in the OCGA are finalized under the direct supervision of the Code Revision Commission."

Justice Alito asked whether the copyright issue turned on whether the annotations were designated by the state as "official" or "unofficial." Citron acknowledged that that would "go a long way," but he maintained that in this case, it would not make a difference. "If the State is the one that actually puts together the annotations, and it’s known that these are the State’s annotations, labeling part of it official and part of it unofficial is not going to do the trick," he said.

A couple of Justices asked Citron to distinguish the facts at hand from the Court’s decisions in Callahan and in Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), holding that judicial opinions are not copyrightable, but suggesting that annotations or notes added to judicial opinions by a court’s official reporter (both government officials) may be copyright eligible. Citron replied that those cases dealt with individual authors, whereas the annotations in the OCGA are authored at the behest of the Georgia Code Revision Commission and the state legislature.

Justice Ginsburg asked why the annotations should not be subject to copyright if "they’re just useful information on how the law has been interpreted and applied by others?" Justice Breyer framed the question as "What function does this particular set of words play in the law?" He expressed doubt that the annotations have the force of law as opposed to being informational. Citron answered that there are lots of Georgia cases that cite the annotations to the OCGA. He urged the Court to focus on the editor’s notes (legislative history, effective dates, etc.), which are also an annotation over which the state is asserting copyright in this case.

Justice Kavanaugh expressed concern about the argument made by several amici states that denying copyright protection would disincentivize the creation of annotations in the first place. Citron said that nothing would prevent the publication of privately annotated codes, which are available for every state now. "The official versions bear the states’ imprimatur. They get to supervise what goes in them. That’s the source of the problem with the copyrighting of it," Citron said.

State of Georgia rebuttal. In his rebuttal argument, Johnson emphasized that "this case is the legislative analog of Wheaton and Callaghan." He noted the present and prior Copyright Acts have adopted the notion that state governments may hold copyrights in annotations by state government employees. The Copyright Act of 1976 extends copyright protection to “original works of authorship” that are “fixed in any tangible medium of expression.” 17 U.S.C. 102(a). The Act also provides that “a work prepared by an officer or employee of the United States Government as part of that person’s official duties” is considered a “work of the United States Government.” 17 U.S.C. 101.

The last point Johnson made was that to deny copyright protection in this case would be very disruptive for states, and would impact approximately one-third that are in the same position as Georgia.

The case is Dkt. No. 18-1150.

Attorneys: Joshua S. Johnson (Vinson & Elkins LLP) for State of Georgia. Eric F. Citron (Goldstein & Russell, P.C.) for Public.Resource.Org, Inc. Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, for the United States.

Companies: Public.Resource.Org, Inc.

MainStory: TopStory Copyright TechnologyInternet

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