Georgia Loses Annotated Code Copyright Battle at Supreme Court
Written April 27, 2020
Copyright protection does not extend to works produced by judges or legislators in the course of their official duties, the United States Supreme Court held on April 27, 2020. Georgia v. Public.Resource.Org, Inc., U.S., 18-1150.
This case involves the State of Georgia's only official code, the Official Code of Georgia Annotated (OCGA). OCGA includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations that appear beneath each statutory provision. The annotations in the current OCGA were produced by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Georgia Code Revision Commission, a state entity composed mostly of legislators.
Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records and legal materials, posted the OCGA online and distributed copies to various organizations and Georgia officials. After sending PRO several cease-and-desist letters, the Commission sued PRO for infringing its copyright in the OCGA annotations. PRO counterclaimed, seeking a declaratory judgment that the entire 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, rejecting the Commission's copyright assertion under the government edicts doctrine, which says that judges may not be considered "authors" of the works they produce in the course of their official duties as judges.
Government Edicts Doctrine
Writing for a 5-4 majority, Chief Justice Roberts examined the government edicts doctrine and noted that it traces back to a trio of cases decided in the 19th century. Roberts found that the cases plainly state that 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 "animating principle" behind this rule, he explained, "is that no one can own the law."
Aided by further precedential evidence, the Court drew the conclusion that if the doctrine applied to judges, then it must apply similarly to legislators. Therefore, Roberts explained, "copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties."
Georgia's Annotations Are Not Copyrightable
Applying that framework, Chief Justice Roberts found that Georgia's annotations were not copyrightable. First, the Court found that the author of the annotations qualified as a legislator, since under the Copyright Act, the sole "author" of the annotations is the Commission, which functions as an arm of the Georgia Legislature in producing the annotations. Second, the Court found that the Commission created the annotations in the discharge of its legislative duties.
Georgia argued that Section 101 of the Copyright Act specifically lists "annotations" among the kinds of works eligible for copyright protection. But Roberts countered that that the provision refers only to "annotations . . . which . . . represent an original work of authorship." The doctrine prevents judges and legislators from serving as authors when they produce works in their official capacity.
Second, Georgia draws a negative inference from the fact that the Act excludes from copyright protection works prepared by Federal Government officials, without establishing a similar rule for State officials. However, the Court found that this does not suggest an intent to displace the much narrower government edits doctrine with respect to the States.
Further, Georgia invoked what it viewed as the official position of the Copyright Office, as reflected in the Compendium of U.S. Copyright Office Practices. But, Roberts countered that the Compendium, which is a non-binding administrative manual, was merely persuasive, and that furthermore it remained largely consistent with the Court's position.
Finally, Georgia attempted to frame the government edicts doctrine to focus exclusively on whether a particular work has the force of law. Roberts found that this understanding of the doctrine could not be squared with precedent.
Justice Thomas, joined by Justices Alito and Breyer, filed a dissenting opinion arguing that the annotations are indeed copyrightable, and that the majority's "extrapolation of precedent is inconsistent with the judicial role." Further, Thomas emphasized that it is up to Congress to make a legislative fix for this situation.
Justice Ginsburg, joined by Justice Breyer, filed a dissenting opinion arguing that while laws are not copyrightable, the annotations in the OCGA are not done in a legislative capacity.
This decision is consistent with the position advocated in AIPLA's amicus brief filed in this case.