In Georgia v. Public.Resource.Org Inc., the U.S. Supreme Court clarified the extent to which governmental authorities can obtain copyright protection for content they create. By a vote of 6-3, the Court held that under the government edicts doctrine, the annotations below the statutory provisions in the Official Code of Georgia Annotated are ineligible for copyright protection because they were produced by the Georgia Legislature in the course of its official work.
Facts of the Case
Under the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties. In one of the seminal cases creating the doctrine, Banks v. Manchester, 128 U.S. 244, 253-254 (1888), the Supreme Court held that, as a matter of “public policy,” judicial opinions, as well as syllabi and “head notes” explaining the substance of those opinions, are not entitled to copyright protection.
The State of Georgia has one official code—the Official Code of Georgia Annotated (“OCGA”). The OCGA includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations that appear beneath each statutory provision. The annotations typically include summaries of judicial opinions construing each provision, summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials. The OCGA is assembled by the Code Revision Commission (“Commission”), a state entity composed mostly of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel.
The annotations in the current OCGA were produced by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. Under the agreement, Lexis drafts the annotations under the supervision of the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission.
Respondent Public.Resource.Org (“PRO”), a nonprofit 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 sending PRO several cease-and-desist letters, the Commission sued PRO for infringing its copyright in the OCGA annotations. PRO counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, fell in the public domain, and therefore there could not be infringement.
The district court concluded that because the annotations in the OCGA lack the force of law, they are not public domain material. It also rejected PRO’s other challenges to the validity of Georgia’s copyright as well as its fair use defense. The Eleventh Circuit reversed. It concluded that no valid copyright interest can be asserted in any part of the OCGA because citizens have a right to “unfettered access to the legal edicts that govern their lives” and that even an annotated version of the state’s legal code is “inherently public domain material.”
Supreme Court’s Decision
A divided Court held that the annotations contained in Georgia’s official annotated code are not protectable under U.S. copyright law. Chief Justice John Roberts wrote on behalf of the majority.
In reaching its decision, the majority emphasized that the “animating principle” behind the government edicts doctrine is that “no one can own the law.” It then concluded that the principle applies equally to judges and legislators.
“We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law,” Chief Justice Roberts wrote. “We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.”
“If 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,” Roberts explained. “In the same way that judges cannot be the authors of their headnotes and syllabi, legislators cannot be the authors of … their floor statements, committee reports, and proposed bills.”
Applying this principle to Georgia’s annotation, the Court concluded that they are not copyrightable. The Court first found that the author of the annotations, Georgia’s Code Revision Commission, qualifies as a legislator and, under the Copyright Act, is the sole “author” of the annotations is the Commission. “The Commission is not identical to the Georgia Legislature, but functions as an arm of it for the purpose of producing the annotations,” the Chief Justice wrote, noting that the Commission is created by the legislature, for the legislature, and consists largely of legislators.
The majority further concluded that the Commission creates the annotations in the discharge of its legislative duties. “Just as we have held that the ‘statement of the case and the syllabus or head note’ prepared by judges fall within the ‘work they perform in their capacity as judges,’ so too annotations published by legislators alongside the statutory text fall within the work legislators perform in their capacity as legislators,” Roberts wrote, citing Banks.
The Court’s decision significantly alters the government edicts doctrine. As explained by Chief Justice Roberts, going forward, courts should not “examine whether given material carries ‘the force of law,’” but instead should “ask only whether the author of the work is a judge or legislator,” because “whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”
For more information about the Supreme Court’s decision in Georgia v. Public.Resource.Org Inc. or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.