On April 27, 2020, the U.S. Supreme Court ruled in a 5-4 decision that the annotations found in Georgia’s official state law code—Official Code of Georgia Annotated (OCGA)—are ineligible for copyright protection. Georgia et al. v. Public.Resource.Org, Inc., 590 U. S. ____ (2020). In affirming the decision of the United States Court of Appeals for the 11th Circuit, the Supreme Court ultimately rejected infringement claims asserted by the state of Georgia against an activist group, Public.Resource.Org, Inc. (“PRO”), which had copied and distributed the OCGA without permission.
The Copyright Act and Government Edicts Doctrine
Copyright protection automatically applies to “original works of authorship” that are “fixed in a tangible medium of expression.” 17 U.S.C. §101. The level of creativity required for a work to be “original” is extremely low, such that the Copyright Act also provides that “annotations” may be copyrightable.
However, prior to the Georgia decision, the government edicts doctrine prohibited certain governmental bodies from claiming and obtaining copyright protection in case opinions, statutes and regulations. In a line of three decisions dating back to the 19th century, the Supreme Court held that judicial opinions are not copyrightable as a matter of public policy because no one may own the law. The court held that judges are not considered “authors” of works produced in the course of their judicial duties—e.g., interpreting and ruling on the law. Therefore, judicial opinions are not considered “original works of authorship,” as required to be eligible for copyright protection under the Copyright Act.
Eventually, lower courts extended the government edicts doctrine to similar works that act with the force of law, such as statutes and regulations.
Background Facts and Procedural History in Georgia
Georgia provided a free, publicly available online version of its statutory codes without annotation. Georgia also entered into an arrangement with Matthew Bender & Co., Inc., a division of the LexisNexis Group (“Lexis”), to create an annotated version of the state codes, which featured materials ancillary to the statutory codes that provided further information on guidance on certain provisions of the statutory codes, such as case summaries and opinions from the state attorney general, as well as relevant law review articles and other reference materials.
The Code Revision Commission (“Commission”), a state-funded entity comprised mostly of Georgia Senate or House of Representatives members, is tasked with compiling Georgia’s statutory text and contracting with a third party to create the accompanying annotations. The Commission entered into a work-for-hire agreement and contract with Lexis, such that the “author” and deemed owner of the OCGA is Georgia. Although Lexis performs a majority of the work in preparing the annotations, the Commission exercises authoritative control over the work and is heavily involved in specifying exact details that must be included. Per the work-for-hire agreement, the Commission granted Lexis exclusive rights to publish and sell the OCGA at a set price.
Respondent Public.Resource.Org, Inc. (“PRO”), an activist group promoting free access to legal authorities, purchased a copy of the OCGA for $412. PRO then distributed a copy of the OCGA on its website without permission. Georgia sued PRO for copyright infringement and the U.S. District Court for the Northern District of Georgia ruled in favor of the state, finding that the Copyright Act protected the annotations because annotations are not enacted laws and therefore lack the force of law so as to be subject to the government edicts doctrine. On appeal, the U.S. Court of Appeals for the Eleventh Circuit reversed, finding that the government edicts doctrine prohibited Georgia from copyrighting its annotations because the annotations were effectively an extension of state law. The Supreme Court affirmed the decision, but based on reasoning different from the Eleventh Circuit, and effectively expanded the government edicts doctrine to apply to annotations prepared by a private party, where such private party is hired on behalf of a commission that effectively functions as an “arm” of the legislature and “wields the legislature’s authority.”
The Supreme Court found that similar to judges, legislators have the power to make law, and therefore, legislators cannot be considered “authors” for purposes of copyright protection. The court held that the government edicts doctrine applies to any works created by judges and legislators acting within the scope of their judicial and legislative duties.
The court went on to find that despite Lexis’s work on the annotations, the Commission was the true “author” of the OCGA and, because the Commission was effectively an arm of Georgia’s legislative body, the government edicts doctrine precludes finding that the OCGA is protected by copyright law.
Impact on Private Parties
The Georgia decision was a blow to Lexis because, as discussed above, Lexis was granted the exclusive rights to publish and distribute the OCGA at a fixed price under its work-for-hire arrangement with the Commission. Had the court determined that Lexis, not the Commission, was the “true” author of the annotations, the government edicts doctrine would not have applied. In fact, the court explicitly held that the doctrine does not apply “to works created by government officials (or private parties) who lack the authority to make or interpret the law, such as court reporters.”
The decision in Georgia is an important reminder of how a work-for-hire agreement can impact a private party’s rights when working with lawmaking government authorities, and both government authorities and publishers of legal materials should review their publishing agreements to ensure that materials ancillary to case law, statutes and regulations—such as annotations—will remain subject to copyright protection. Left open by the Supreme Court is whether government authorities can evade the government edicts doctrine by permitting private parties to retain copyright ownership of annotations that they prepare (instead of assigning such rights to the government pursuant to a “work-for-hire” agreement), even if such government authorities exert direction and control over preparation of such annotations.
