Copyright For Annotations To Legal Text?

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Fox Rothschild LLPDuring this coming term, the U.S. Supreme Court will hear an interesting case involving the State of Georgia’s ability to copyright the annotations to the Official Code of Georgia Annotated (“OCGA”).  The issue is framed as follows: “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.”

The State of Georgia argues that there is a distinction between the law itself, which it agrees is not copyrightable, and the OCGA annotations it hires a private entity to create, which it says have no legal force and are copyrightable.  The opposing party in the case, Public.Resource.Org, Inc., is a non-profit advocacy group that argues the law belongs to the people and thus cannot be copyrighted.  In the underlying decision, the Eleventh Circuit sided with the latter, ruling that “the People are the ultimate authors of the annotations,” which are “inherently public domain material and therefore uncopyrightable.”  As a result, the Eleventh Circuit found Public.Resource.Org., Inc. not to have committed copyright infringement by posting various OCGA volumes and supplements online.

The State of Georgia’s petition to the Supreme Court for certiorari on the issue was granted, and numerous amicus curiae briefs have been filed, demonstrating this is an issue many organizations and people care about (indeed, one brief was filed by 119 law students, 54 solo practitioners and small-firm attorneys, and 21 law professors/educators). The Supreme Court will likely issue a ruling next year.

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