In a split decision, the Supreme Court of the United States in Georgia v. Public.Resource.Org, Inc. affirmed a previous ruling by the US Court of Appeals for the 11th Circuit and held that annotations to the Official Code of Georgia are not eligible for copyright protection.

IN DEPTH

In a 5–4 decision, the Supreme Court of the United States held that copyright law does not protect annotations contained in the official annotated compilation of Georgia statutes. Georgia v. Public.Resource.Org, Inc., Case No. 18-1150 (Supr. Ct. Apr. 27, 2020) (Roberts, Justice) (Thomas, Justice, dissenting) (Ginsburg, Justice, dissenting).

Background

The State of Georgia has one official code: the Official Code of Georgia Annotated (OCGA). The OCGA is compiled and annotated by Lexis under a contract with the Georgia Revision Commission, an arm of the Georgia General Assembly, with summaries of judicial opinions applying a given statute, editor’s notes, excerpts from law review articles and other research references. The contract specifies that the Commission owns the copyright to the OCGA and grants Lexis the exclusive right to publish, distribute and sell copies of the OCGA. The nonprofit group Public.Resource.Org, Inc. (PRO), which is dedicated to providing free access to public documents, purchased a copy of the OCGA and distributed it via its free website. The Commission sued PRO for copyright infringement as it related to the annotations. PRO filed a counterclaim seeking a declaratory judgment that the entire OCGA, including annotations, fell in the public domain.

The district court sided with the Commission, finding that the annotations were eligible for copyright protection because they were “not enacted into law” and lacked “the force of law.” The district court entered a permanent injunction requiring PRO to cease its distribution activities. On appeal, however, the US Court of Appeals for the 11th Circuit reversed, finding that the OCGA could not be copyrighted because the OCGA was approved by the Georgia General Assembly. The 11th Circuit held that the true “author” of the OCGA was therefore “the people,” and thus the OCGA was in the “public domain.” The State of Georgia appealed to the Supreme Court.

Opinion of the Court

The Supreme Court held that the annotations in the OCGA are ineligible for copyright protection. The Court opened with an analysis of precedent relating to the government edicts doctrine, which traces back to the 19th century, finding that the animating principle behind these cases is that no one can own the law. The doctrine gives effect to that principle in the copyright context through construction of the statutory term “author,” and holds that judges cannot be the “author[s]” of “whatever work they perform in their capacity” as lawmakers. The Court explained that legislators, such as judges, have the authority to make law, and that they also cannot be “authors” under the Copyright Act. The Court explained that the doctrine applies to whatever work legislators perform in their capacity as legislators, including explanatory and procedural materials created in the discharge of their legislative duties. Applying this framework, the Court held that the annotations to the OCGA are not copyrightable because the author of the annotations under the Copyright Act is the Commission, which functions as an arm of the Georgia legislature in creating the annotations in the discharge of its legislative duties.

The Court rejected Georgia’s argument that excluding the OCGA annotations from copyright protection conflicts with the text of the Copyright Act, which permits “annotations” among the kinds of work eligible for protection. The Court found that the relevant provision refers only to “annotations . . . which . . . represent an original work of authorship,” and that the OCGA annotations do not fit that description because they are prepared by a legislative body that cannot be deemed an “author” of the works it creates in its official capacity.

The Court also rejected Georgia’s attempt to frame the government edicts doctrine to focus exclusively on whether a particular work has the force of law. The Court noted that Georgia’s conception of the doctrine as distinguishing between different categories of content with different effects has less of a textual footing than the traditional formulation, which focuses on the identity of the author. The Court explained that Georgia’s characterization of the OCGA annotations as non-binding and non-authoritative undersells the practical significance of the annotations to litigants and citizens, and would logically permit states to hide all non-binding judicial and legislative work product—including dissents and legislative history—behind a paywall.

Justice Thomas penned a dissenting opinion (in which Justice Alito joined and Justice Breyer joined in part) arguing that while the 19th century precedent analyzed by the majority establishes that judicial opinions cannot be copyrighted, such precedent does not exclude from copyright protection notes that are prepared by an official court reporter and published together with the reported opinions. The dissent argued that there is no reason why the same logic would not apply to statutes and regulations, meaning that while statutes and regulations cannot be copyrighted, accompanying notes lacking legal force can be protected.

Justice Ginsburg, joined by Justice Breyer, also dissented, arguing that annotations to the OCGA are not written by the Commission in its legislative capacity. This dissent argued that annotations are not part of the lawmaking process because:

• The annotations are not created contemporaneously with the statutes, but are instead drafted after lawmaking ends.

• The annotations do not convey the legislature’s view of the law, but instead summarize writings in which others express views on a given statute.

• The annotations aim to inform the citizenry at large and are not commissioned by the legislature to aid in lawmaking.

Justice Ginsburg’s dissent argues that because summaries of judicial decisions and commentary bearing on enacted statutes is not done in a legislator’s law-shaping capacity, the OCGA annotations should be copyrightable.