IP Law Daily High Court rules annotations in Georgia’s Official Code are not copyrightable
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Monday, April 27, 2020

High Court rules annotations in Georgia’s Official Code are not copyrightable

By Cheryl Beise, J.D.

Finding that the government edicts doctrine covers legislative works, Court holds that Georgia’s annotations are inherently public domain material because they are authored by an arm of the legislature in the course of its official duties.

In a 5-4 decision, the U.S. Supreme Court has held that the annotations in the Official Code of Georgia Annotated (OGCA) are ineligible for copyright protection. The Court first clarified that the judicially created government edicts doctrine—which provides that works authored by judges are public domain materials that cannot be copyrighted—extends to works created by legislators acting in their legislative capacity. The Court next determined that while the copyrighted annotations in the OGCA are created by a private party on a work-for-hire basis, the actual "author" of the annotations is Georgia’s Code Revision Commission, acting "as an extension of the Georgia Legislature in preparing and publishing the annotations." Chief Justice Roberts delivered the opinion of the Court. Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh joined in the majority opinion, while Justice Thomas and Justice Ginsburg filed dissenting opinions (Georgia v. Public.Resource.Org, Inc., April 27, 2020, Roberts, J.).

The Official Code of Georgia Annotated is an annotated compilation of Georgia statutes that has been published annually since 1982. The Code Revision Commission (the "Commission")—an official body established by the Georgia General Assembly in 1977—asserts a copyright in all portions of the OCGA except for the statutory text, which it recognizes cannot be copyrighted. The Commission is composed of 15 members, nine of whom are sitting members of the Georgia General Assembly, along with the Lieutenant Governor. Since 2006, the annotations in the OCGA have been produced by Matthew Bender & Co., Inc., a division of LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. Under the agreement, Lexis drafts the annotations under the supervision of 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. LexisNexis receives income from its sales, and the Commission receives royalties from sales of the OCGA. LexisNexis is required to provide Georgia's statutes in an un-annotated form on a website that the public can access for free.

A dispute arose when Public.Resource.Org, Inc.—a non-profit organization dedicated to improving public access to government records—published all 186 printed volumes and supplements of the OCGA on its website, law.resource.org, free of charge. The Code Revision Commission and the State of Georgia (collectively, "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 district 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. The appeals court concluded that 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. The question presented by Georgia’s petition for certiorari was, "Whether 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."

Government edicts doctrine. The Copyright Act protects "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102. The statute excepts from copyrightability works created by the federal government. Section 105 provides that "[c]opyright protection under this title is not available for any work of the United States Government." 17 U.S.C. § 105. Another exception to copyright eligibility is the judicially created government edicts doctrine, which provides that opinions authored by judges are public domain materials that cannot be copyrighted.

The Court began by examining three 19th Century Supreme Court cases that spawned the government edicts doctrine. In Wheaton v. Peters, 8 Pet. 591 (1834), the Court held that no reporter can have a copyright in the Court’s opinions and that the Justices cannot confer such a right on any reporter. In Banks v. Manchester, 128 U.S. 244, 253 (1888), the Court held that judges could not assert copyright in "whatever work they perform in their capacity as judges"—be it "the opinion or decision, the statement of the case and the syllabus or the head note." In Callaghan v. Myers, 128 U.S. 617 (1888), the Court reiterated that an official reporter cannot hold a copyright interest in opinions created by judges. The Court has not revisited the government edicts doctrine in the last 130 years.

The Court explained the rationale for the government edicts rule. "Because judges are vested with the authority to make and interpret the law, they cannot be the ‘author’ of the works they prepare ‘in the discharge of their judicial duties.’" The rule applies both to binding works (such as opinions) and to non-binding works (such as headnotes and syllabi). However, the rule does not apply to works created by government officials (or private parties) who lack the authority to make or interpret the law, such as court reporter. "The animating principle behind this rule is that no one can own the law," and all citizens should have free access to the law, the Court said.

The Court focused on the concept of authorship. "If judges, acting as judges, cannot be "’authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either," the Court reasoned. Courts have long interpreted the government edicts doctrine to apply to legislative materials, including final legislation, as well as explanatory and procedural materials legislators create in the discharge of their legislative duties. In sum, "[u]nder our precedents, therefore, copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties."

Official Code of Georgia Annotated. Applying the government edicts framework to the OCGA, the Court concluded that Georgia’s annotations are not copyrightable. The Court first examined whether the purported author of the annotations is a state legislator. Under Section 201(b) of the Copyright Act, Georgia’s Code Revision Commission is the sole "author" of the annotations because they were prepared by Lexis pursuant to a work-for-hire agreement.

While not identical to the Georgia Legislature, the Commission "functions as an arm of it for the purpose of producing the annotations," the Court found. "The Commission is created by the legislature, for the legislature, and consists largely of legislators. The Commission receives funding and staff designated by law for the legislative branch. Significantly, the annotations the Commission creates are approved by the legislature before being ‘merged’ with the statutory text." Moreover, the Georgia Supreme Court has confirmed that the work of the Commission is "within the sphere of legislative authority." Harrison Co. v. Code Revision Comm’n, 260 S. E. 2d 30, 34 (1979). "All of this shows that the Commission serves as an extension of the Georgia Legislature in preparing and publishing the annotations," the Court determined.

The second step, according to the Court, is to determine whether the Commission creates the annotations in the "discharge" of its legislative "duties." The Court concluded that it does. The annotations are not enacted into law through bicameralism and presentment, but the Commission’s preparation of the annotations is under Georgia law an act of "legislative authority," the Court said. "In light of the Commission’s role as an adjunct to the legislature and the fact that the Commission authors the annotations in the course of its legislative responsibilities, the annotations in Georgia’s Official Code fall within the government edicts doctrine and are not copyrightable," the Court concluded.

The Court next addressed arguments presented by Georgia. Georgia contended that exclusion of the OCGA annotations from copyright protection conflicts with the text of the Copyright Act. Section 101 of the Act specifically lists "annotations" among the kinds of works eligible for copyright protection. However, Section 101 also provides any such annotations must "represent an original work of authorship." While this may apply to supplemental, explanatory materials prepared by a private party, or a non-lawmaking official, it does not apply to materials prepared by a judge or legislator, the court said.

The Court also rejected Georgia’s reading of a negative inference from the absence of state and local government from Section 105. The Federal Government’s decision to broadly forfeit copyright protection for its own proprietary works "does not suggest an intent to displace the much narrower government edicts doctrine with respect to the States," the Court suggested. In support of its argument, Georgia also invoked the Compendium of U. S. Copyright Office Practices. However, the State conceded that the Compendium is a non-binding administrative manual.

Justice Thomas dissent. Justice Clarence Thomas filed a dissenting opinion, in which Justice Alito joined and Justice Ginsburg joined as to all but Part II A and footnote 6.

Justice Thomas pointed out that Copyright Act and the Court’s 19th Century precedents establish that judicial opinions cannot be copyrighted, but they do not exclude from copyright protection notes that are prepared by an official court reporter and published together with the reported opinions. "There is no apparent reason why the same logic would not apply to statutes and regulations," Justice Thomas said. "Thus, it must follow from our precedents that statutes and regulations cannot be copyrighted, but accompanying notes lacking legal force can be."

First, unlike judicial opinions and statutes, the annotations do not carry the binding force of law. Second, unlike judges and legislators, the creators of annotations "are incentivized by the copyright laws to produce a desirable product that will eventually earn them a profit." Although the Commission requires Lexis to follow strict guidelines, "the independent synthesis, analysis, and creative drafting behind the annotations makes them analogous to other copyrightable materials," Justice Thomas said. He also observed that the annotations do not impede fair notice of the laws. "They simply summarize independent sources of legal information and consolidate them in one place."

Justice Thomas also cited the text of the Copyright Act to support the copyrightability of the OCGA annotations. First, the Act does not define the word "author" or make any reference to the government edicts doctrine. Second, while the Act excludes from copyright protection works prepared by an officer or employee of the United States Government, it contains no similar prohibition against works of state governments or works prepared at their behest. Third, the Act specifically notes that annotations are copyrightable derivative works.

Justice Thomas additionally noted that the majority’s decision will be difficult to implement. The majority’s government edicts test lacks pivotal guidance, he said. "Perhaps, to the detriment of all, many States will stop producing annotated codes altogether. Were that to occur, the majority’s fear of an ‘economy-class’ version of the law will truly become a reality," Justice Thomas suggested.

Justice Ginsburg dissent. Justice Ruth Bader Ginsburg filed a dissenting opinion, in which Justice Breyer joined. Justice Ginsburg would hold that the annotations in the OCGA are not created by legislators in their legislative capacity. Justice Ginsberg listed three reasons for her conclusion. First, the annotations are not created contemporaneously with the statutes to which they pertain; instead, the annotations comment on statutes already enacted. Second, the OCGA annotations are descriptive rather than prescriptive. The annotations summarize writings in which others express their views on a given statute. Lastly, as the OCGA states, the annotations are "given for the purpose of convenient reference" to the public. According to Justice Ginsburg, the annotations are nothing other than explanatory, referential, or commentarial material.

The case is Dkt. No. 18-1150.

Attorneys: Joshua Stephen Johnson (Vinson & Elkins LLP) for State of Georgia. Eric F. Citron (Goldstein & Russell, PC) for Public.Resource.Org, Inc.

Companies: Public.Resource.Org, Inc.

MainStory: TopStory Copyright TechnologyInternet

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