Georgia On Our Minds: Annotations Authored by Legislators Not Eligible for Copyright Protection

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

On April 27, the Supreme Court took us on a stroll down memory lane in its decision in Georgia v. Public.Resource.Org, Inc., referring us back to its very first copyright case and revisiting the government edicts doctrine for the first time in more than a century. The Court, applying logic from Wheaton v. Peters, along with Banks v. Manchester, and Callaghan v. Myers, based its decision on this doctrine, which limits copyright protection for works created by officials who are empowered to speak with the force of law. Justice Roberts, writing for the 5-4 majority, (joined by Justices Gorsuch, Kagan, Kavanaugh, and Sotomayor) clarified that the doctrine also applies to legislators, and legislators thus cannot be “authors” for copyright of the works they create in the course of their official duties.  Accordingly, copyright protection does not extend to annotations in the State of Georgia’s official code because of its “authors.”

The Background

Georgia has one official code, the Official Code of Georgia Annotated (the “OCGA”), which includes the text of every Georgia statute currently in force. Georgia offers its official code to the public without restriction but also compiles additional resources related to the code (i.e. annotations, summaries, legislative history, and attorney general opinions). The copyright in these additional resources belongs to Georgia’s Code Revision Commission (the “Commission”) through a work-for-hire agreement with the private company (LexisNexis) that helps compile them. Access to this second, more detailed version requires payment from users.

Public.Resource.Org., Inc. (“PRO”), a nonprofit organization 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 several cease-and-desist demands, the Commission filed suit against PRO for infringing its copyright in the annotations.  The District Court ruled in favor of the Commission, reasoning that because the annotations were not enacted into law and did not enjoy the force of law, they were afforded copyright protection.  The Eleventh Circuit reversed, rejecting the Commission’s copyright assertions under the government edicts doctrine, finding that if works created by judges in the performance of their official duties fall into the public domain, so do works created by, or in this instance, in partnership with, legislators.

Legislators Cannot be “Authors”

The Court affirmed the Eleventh Circuit’s ruling, but clarified that the rule under the government edicts doctrine – that judges, and now legislators may not be considered the “authors” of the works they produce in the course of their official duties – applies regardless of whether a given material carries the force of law. It reviewed the aforementioned nineteenth century cases, focusing on judges’ rights to copyright protection for their opinions, and extended the government edicts doctrine from legal opinions of judges and statutory text to non-binding, explanatory legal materials created by a legislative body, in this case, the Code Revision Commission, established by the Georgia Legislature, for the legislature, and consisting largely of legislators.  It reasoned “[i]f 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.” As Georgia’s annotations are authored by the Commission, an arm of the legislature in the course of its legislative duties, the Court opined that the Commission is the author and the government edicts doctrine disallows copyright protection for these annotations.

Unequal Access to Information

The Court further reasoned that copyright protection for annotations would result in unequal access to information. The availability of the OCGA behind a paywall would result in what Justice Roberts described as “first-class” information being available only to paid users while those who cannot pay would only be privy to the “economy-class” version. As an example, only a paid user would see that some laws within the Georgia Code have been held unconstitutional and are now unenforceable.

Going Forward

The opinion concludes by reiterating that it does not matter whether the material in question carries “the force of law.” The question comes down to “only whether the author of the work is a judge or legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”

Georgia v. Public.Resource.Org, Inc. will likely affect the 25 other jurisdictions that rely on similar methods in producing annotated codes. It will be interesting to see how each jurisdiction adapts to this declaration that work produced by legislators are not eligible for copyright protection.

Justice Thomas, joined by Justice Alito and Breyer, penned a dissenting opinion while Justice Ginsburg, joined by Justice Breyer, authored her own dissent. And if it was not clear before, neither of these opinions is copyrightable either.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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