The law – judicial opinions, statutes, and regulations – cannot be copyrighted. In Georgia v. Public.Resource.Org, Inc., No.18-1150 (April 21, 2020), the US Supreme Court was presented with the question whether annotations, created by a body vested with the authority to codify the law and merged into an official state code, are copyright eligible. This case stemmed from Georgia’s assertion of a copyright in annotations published in the Official Code of Georgia Annotated (“OCGA”), published by the Georgia Code Revision Commission (“Commission”). Holding that the explanatory annotations in Georgia’s official statutory code were “authored by an arm of the legislature in the course of its legislative duties,” the Court decided that the government edicts doctrine put the annotations “outside the reach of copyright protection.” The 5-4 decision revisited the government edicts doctrine for the first time in over 130 years.
The fundamental principle underlying the government edicts doctrine is that no one can own the law. Applying this principle, the Court said, “judges–and, we now confirm, legislators–may not be considered the ‘authors’ of the works they produce in the course of their official duties as judges and legislators.” The Court applied a two-step analysis: first, did the “author” (here, the Commission) qualify as a “legislator”; and second, was the work in question (here, the annotations) created in the discharge of legislative duties. The Court found that both parts of this test were met. The Court’s decision relied on a number of facts to reach its conclusion that the Commission qualifies as a “legislator,” but did not enumerate the significance of most of them. While we now know that the government edicts doctrine covers the legislative branch, the Court’s “straightforward rule” may prove challenging to apply to the wide range of government commissions, bureaus, agencies, and quasi-governmental entities operating under differing statutory or regulatory frameworks.
In the Georgia case, the annotations are initially drafted by a private party under a work-for-hire agreement with the Commission. The Commission then submits its proposed statutory text and annotations to the Georgia Legislature. The Georgia Legislature funds the Commission, a majority of Commission members are state senators or representatives, and the Commission is staffed by the Office of Legislative Counsel. Two factors stand out from the Court’s decision. First, the Court attributed particular significance to the fact that the Legislature must vote to approve the annotations. Second, the Court emphasized that, under the Georgia Constitution, the Commission’s duties are “within the sphere of legislative authority.”
Having concluded that the Commission is a “legislator,” the Court decided that the Commission’s work was within the sphere of its legislative duties. Primarily, the Court relied on the same Georgia Supreme Court decision used to justify its conclusion that the Commission is a “legislator.” Addressing Justice Ginsburg’s argument in dissent that the annotations are not authoritative statements of the law, the Court analogized them to a syllabus or head note for a judicial decision prepared by judges, which the Court had decided were not copyrightable under the government edicts doctrine in Banks v. Manchester, 128 U.S. 244 (1888).
Applying these principles to commissions and similar entities in other states in the future is likely to be influenced heavily by the particular statutory or regulatory framework that applies. If the annotations at issue had not been voted on by the Georgia Legislature, and if the Georgia Supreme Court had not previously held that the Commission’s work is “within the sphere of legislative authority,” the Court may well have declined to apply the government edicts doctrine.