Supreme Court rejects Georgia copyright claim on annotated codes

GEORGIA ET AL. V. PUBLIC.RESOURCE.ORG, INC., CASE NO. 18-1150 (S. CT.), 590 U.S. ______ (APRIL 27, 2020).

The U.S. Supreme Court today rejected the State of Georgia’s attempt to assert copyright in the Official Code of Georgia Annotated (OCGA) under 17 U.S.C. §102(a). Georgia et al. v. Public.Resource.Org, Inc., Case No. 18-1150 (S. Ct.), 590 U.S. ______ (April 27, 2020). The Court held that the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the OCGA.

Chief Justice Roberts authored the Court’s opinion, forming a 5-4 majority. Justice Thomas, joined by Justice Alito and in part by Justice Breyer, authored a lengthy dissent characterizing the outcome as being “to the detriment of all” and predicting that “many States will stop producing annotated codes altogether.” Justice Ginsberg, joined by Justice Breyer, authored a shorter dissent, asserting that the annotations in the OCGA had an “auxiliary, nonlegislative character” and were not drafted “in a legislator’s law-shaping capacity.”

Background facts
The case began with Public.Resource.Org (PRO), a nonprofit organization that aims to facilitate public access to government records and legal materials, posting a freely accessible digital version of the OCGA on a number of websites and distributing copies of the OCGA to numerous organizations and Georgia officials. PRO refused to halt its activities in response to several cease-and-desist letters sent by Georgia’s Code Revision Commission (“Commission”).

The Commission then sued in district court, limiting its assertion of copyright to the annotations in the OCGA, and without claiming copyright in the statutory text or numbering. The District Court ruled in favor of the Commission because the annotations were “not enacted into law” and lacked “the force of law.” The Eleventh Circuit reversed, deeming the “ultimate enquiry” to be whether a work is “attributable to the constructive authorship of the people.” The Eleventh Circuit weighed three factors and found that each of those factors favored treating the OCGA annotations as government edicts authored by the people.

The Supreme Court’s analysis
The Supreme Court affirmed the Eleventh Circuit, confirming that under the government edicts doctrine, legislators (here embodied by the Commission), like judges, cannot be considered authors of works they produce in the course of their official duties as legislators. The Court found that precedential cases establish a straightforward rule that judges cannot be the author of works they prepare in the discharge of their official duties, and that this rule applies to both binding and non-binding works (such as headnotes and syllabi). Based on this precedent, the Court reasoned that because legislators, like judges, are generally empowered to make or interpret law, their whole work must be free for publication to all.

As to the first step of determining authorship, while the annotations were prepared by a private company (Lexis), the works were prepared pursuant to a work-for-hire agreement with the Commission. Under this key fact, the Court found that the Commission was the author of the work under 17 U.S.C. § 201(b), regardless of the effort expended by Lexis in preparing the works, because Lexis did so under a work-for-hire agreement. Further, while the Commission is not identical to the Georgia Legislature, the works of the Commission, including annotations, are approved by the legislature before being merged with the statutory text. The Court also noted that the Georgia Supreme Court had held that under the Georgia Code, the work of the Commission is within the sphere of legislative authority, and that the Commission had initiated suit on behalf of the Georgia Legislature. As to the second step of determining whether the Commission created the annotations in the discharge of its legislative duties, the Court found that annotations published by legislators alongside the statutory text fall within the work legislators perform in their official capacity.

The Court rejected Georgia’s argument that § 101 of the Copyright Act expressly lists annotation as being a kind of work eligible for copyright protection, holding that legislative materials, akin to judicial materials, are ineligible for protection even when they happen to fit the description of otherwise copyrightable materials. The Court also rejected Georgia’s argument that the Copyright Act does not explicitly exclude works prepared by States, while it does exclude works prepared by an officer or employee of the United States Government as part of that person’s official duties. The Court noted that the federal rule does not suggest an intent to displace the much narrower government edicts doctrine with respect to the States.

Possible impact on future annotated codes
This decision reinforces the government edicts rule by holding that works prepared by entities empowered to make or interpret law, even if distinct from the law itself, such as annotations ancillary to statutory text, are excluded from copyright protection by the government edicts doctrine. This result appears to disrupt longstanding arrangements between state legislatures and legal publishers, however, and the long-term impact could be contrary to the public interest, as pointed out by Justice Thomas’s dissent. States and legal publishers may respond in numerous ways, including offering free versions of existing annotated codes, but subsequently cease releasing codes with the guidance of legislature-approved annotations, effectively eliminating this useful tool. Alternatively, legal publishers may publish and charge fees for annotated codes prepared independently from the states, because the government edicts doctrine is unlikely to extend to such works.

---------------------------------------

If you have any questions about this legal alert, please feel free to contact any of the attorneys listed under 'Related People/Contributors' or the Eversheds Sutherland attorney with whom you regularly work.