By Cheryl Beise, J.D.
The state of Georgia cannot claim a copyright in the Official Code of Georgia Annotated ("OCGA" or "the Code") because the Code, along with the official annotations, are inherently public domain material and therefore uncopyrightable, the U.S. Court of Appeals in Atlanta has ruled. 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. A district court’s decision upholding the validity of the state’s copyright registration in the OCGA annotations was reversed and its judgment and permanent injunction against a nonprofit online publisher were vacated and the case remanded (Code Revision Commission v. Public.Resource.Org, Inc., October 19, 2018, Marcus, J.).
The OCGA 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 fifteen members, nine of whom are sitting members of the Georgia General Assembly, along with the Lieutenant Governor of the state.
The question presented by this case is whether the annotations contained in in the OCGA are subject to copyright. The annotations were initially prepared by Mathew Bender & Co., Inc., a division of the LexisNexis Group, (Lexis), pursuant to an agreement with the state of Georgia. The agreement provides that the Commission supervises the work of Lexis and has final editorial control over the contents of the OCGA. The agreement also requires that Lexis create a free, unannotated, online version of the Code for use by the general public. Lexis/Nexis receives income from sales of the annotated Code, and the Commission receives royalties from sales of CD-ROMs and online versions of the OCGA.
The present controversy arose when Public.Resource.Org, Inc. ("Public Resource" or "PRO")—a non-profit organization dedicated to improving public access to government records—purchased all 186 printed volumes and supplements of the OGCA, scanned and posted the copies on its website, law.resource.org, and distributed copies of the OGCA on thumb drives to several members of the Georgia legislature. The Commission, on behalf of the General Assembly of Georgia, sued Public Resource for direct and indirect copyright infringement, seeking injunctive relief and removal of any infringing materials from the Internet. The Code Commission moved for partial summary judgment, not seeking judgment for the 2015 version of the OGCA, since that was not yet registered at the time of filing suit. Public Resource opposed the motion on the ground that the annotations to the OGCA were not copyrightable, or alternatively, because its republication of the OCGA constituted fair use.
The district court rejected PRO’s arguments and granted partial summary judgment to the Commission. The court concluded that because the annotations in the OCGA lacked the force of law, they were not public domain material. The district court permanently enjoined PRO from publishing the OGCA and ordered PRO to remove all copies of the OGCA from its website.
Copyrightability. There was no dispute that the state of Georgia had a registered copyright in the OCGA annotations and that PRO copied the OCGA in its entirety. PRO’s main argument in its defense was that Georgia’s copyright in the OCGA was invalid.
The Copyright Act protects "original works of authorship fixed in any tangible medium of expression…" 17 U.S.C. § 102. When it comes to the authorship of a governmental work, the court noted that for more than 180 years, the term "author" has been construed to mean "the People," so that the general public is treated as the owner of the work. "This means that a work subject to the rule is inherently public domain material and thus not eligible for copyright protection," the court explained. Indeed, 1909 and 1976 versions of the Copyright Act codified this concept as to works created by the federal government. Section 105 currently provides that "[c]opyright protection under this title is not available for any work of the United States Government." 17 U.S.C. § 105.
Government authorship. The court noted that the Supreme Court last addressed the question of governmental authorship in 1888 in Banks v. Manchester, 128 U.S. 244 (1888). The ultimate inquiry considered in Banks was "whether a work is attributable to the constructive authorship of the People, which is to say whether it was created by an agent of the People in the direct exercise of sovereign authority," the court said. The court further observed that "whether or not a work is subject to the rule is dependent on whether the work is the law, or sufficiently like the law, so as to be deemed the product of the direct exercise of sovereign authority."
The court listed three attributes that are inherent in law: (1) the law is written by particular public officials who are entrusted with the exercise of legislative power; (2) the law is, by nature, authoritative; and (3) the law is created through certain, prescribed processes, the deviation from which would deprive it of legal effect. Applying the factors to this case, the court concluded that "the annotations in the OCGA, while not having the force of law, are part and parcel of the law."
Legislative authorship. First, the Code Revision Commission is the driving force behind the creation of the OCGA annotations. Lexis drafts the annotations only pursuant to highly detailed instructions contained in the contract it entered into with the Commission. In addition, the Commission acts in a supervisory capacity by monitoring Lexis’s work throughout the process and must give the final editorial assent before the annotations become part of the OCGA.
The court described the Code Revision Commission as an arm or "alter ego" of the Georgia General Assembly. The Georgia Supreme Court has held that the Commission’s work is properly characterized as "legislative" in nature. Harrison Co. v. Code Revision Comm'n, 244 Ga. 325 (1979). Thus, "the connection between the Commission and the elected legislators who make up the General Assembly is so close that the Commission may be properly regarded as one in the same with the legislators for our purposes," the court said. Moreover, the OCGA annotations, once completed, must be approved by the Georgia General Assembly.
Authoritative weight. Second, "while not carrying the force of law in the way that the statutory portions of the OCGA do," the court characterized the annotations as "‘law-like’ in the sense that they are ‘authoritative’ sources on the meaning of Georgia statutes." For example, Georgia’s courts have cited to the annotations as authoritative sources on statutory meaning and legislative intent. In addition, while OCGA § 1-1-7 disclaims any legal effect in the annotations, OCGA § 1-1-1 expressly states that the statutory portions of the Code "shall be merged with annotations captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials and [are] published by authority of the state …and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’" Because the Georgia legislature chose to merge the annotations with the statutes in order to create the OCGA as the "official" codification of Georgia laws, "the annotations are clearly laden with legal significance," the court said.
Process of authorship. Finally, the court determined that the process for creating the annotations favored a finding that they were attributable to the constructive authorship of the People. The process by which the OCGA annotations are created—bicameral passage of a bill and its presentment to the executive—is similar to the ordinary process by which laws are enacted, the court observed. Thus, "the Georgia legislature’s use of bicameralism and presentment to adopt the annotations as their own and merge them with statutory text indicates that the work was created by the legislators in the discharge of their official duties," the court said.
Conclusion. Considering the factors relating to the identity of the public official who created the work, the nature of the work, and the process by which the work was produced, the Eleventh Circuit concluded that the OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. As such, the OCGA annotations are attributable to the constructive authorship of the People and constitute intrinsically public domain material not eligible for copyright protection. The appeals court reversed the judgment of the district court and directed the court to enter judgment in favor of PRO.
The case is No. 17-11589.
Attorneys: Anthony B. Askew (Meunier Carlin & Curfman, LLC) for Code Revision Commission and State of Georgia. Elizabeth Hannah Rader (Alston & Bird, LLP) for Public.Resource.Org, Inc.
Companies: Code Revision Commission; Public.Resource.Org, Inc.
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