Revisiting the government edicts doctrine for the first time in more than a century, the U.S. Supreme Court in Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (2020), split 5-4 to hold that annotations to state laws, "authored by an arm of the legislature in the course of its official duties," are ineligible for copyright protection.
The Official Code of Georgia Annotated ("OCGA"), the state's official statutory code, is assembled by the Code Revision Commission. The Commission was established by the Georgia Legislature and is charged with selecting and supervising a publisher for the OCGA. The Commission contracted with a publishing company to draft the annotations, with the copyright in the OCGA vesting in the state. Pursuant to its agreement with the Commission, the publishing company had exclusive rights to publish and sell the OCGA, as long as it limited the price and made an unannotated version of the code available online for free. Public.Resource.Org Inc. published the OCGA online and distributed copies to various organizations, taking the position that the OCGA was in the public domain. The Commission, on behalf of the Georgia Legislature and the State of Georgia, sued for copyright infringement of the annotations. The district court granted partial summary judgment to the Commission. However, the Eleventh Circuit reversed, holding that the annotations were "sufficiently law-like" to be considered a government edict, and thus not copyrightable.
In affirming the Eleventh Circuit's judgment, the Supreme Court applied the government edicts doctrine, under which officials that are "empowered to speak with the force of law cannot be authors of-and therefore cannot copyright-the works they create in the course of their official duties." This clarified that the doctrine applies even if the work does not carry the force of law.
The Court advised that materials are not subject to copyright protection if created by a judge or a legislator "in the course of their judicial and legislative duties." Under that framework, the Court determined the OCGA was not copyrightable because it was authored by the Commission, which acted as an arm of the legislature and created the annotations in the discharge of its legislative duties.
This holding will impact states and publishing companies that have similar arrangements to produce annotated codes. Under the decision, other materials authored by legislative bodies in the course of their duties are also no longer subject to copyright protection.
Originally published April 2020
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