SCOTUS Rejects Georgia’s Bid to Claim Copyright Protection in Official Annotated Codes

Attorney Matthew J. Soroky

Matthew J. Soroky | Associate

May 1, 2020

Long ago the “government edicts doctrine” established that state and federal law is not entitled to copyright protection. Essentially, original works that have the force of law and created by officials in the course of their official duties cannot be protected by copyright. But the doctrine does not extend to private companies that annotate, summarize, or add other elements to case opinions, statutes, codes and other law.

In a 5-4 opinion that crossed ideological lines, the U.S. Supreme Court held in Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. (April 27, 2020), that a state’s legislative commission may not claim copyright protection to annotations and commentary on its own code.

The Official Code of Georgia Annotated (“OCGA”) includes the text of every current Georgia statute and a set of annotations that appear below each provision. Annotations were produced by a division of the LexisNexis Group under a work-made-for-hire agreement with Georgia’s Code Revision Commission (the “Commission”). A nonprofit posted the OCGA online and distributed copies. The State of Georgia and the Commission sued for copyright infringement, and the nonprofit counterclaimed seeking a declaration that the entire OCGA, including the annotations, fell in the public domain.

The majority opinion, delivered by Chief Justice John G. Roberts and joined by Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, and Brett M. Kavanaugh, determined that Georgia, under the work-made-for-hire agreement, was the copyright “author” of the annotations. Because the Commission was a product of the Georgia legislature and made up of mostly legislators, it functioned as the arm of the Georgia legislature for purposes of producing the annotations.

The majority also found that the Commission created the annotations in the discharge of its legislative duties, because the state’s annotations were approved by the state legislature before they were merged with their appropriate code sections prior to publication. The Commission’s role in having LexisNexis compile the annotations and statutory text on its behalf was also within the sphere of legislative authority under Georgia law.

The majority rejected Georgia’s argument that Section 101 of the Copyright Act specifically lists “annotations” among the kinds of work eligible for copyright protection.

The Court explained that Section 101 requires an original work of authorship, and under the government edicts doctrine, judges and legislators cannot be copyright “authors” of works they produce in their official capacities. Georgia also asserted its annotations must be copyrightable because they were not binding law. In rejecting this argument, the Court pointed out that copyright protection would permit states to require payment from citizens and litigants for access to judicial and legislative work product, counter to public policy.

Justices Ruth Bader Ginsburg and Clarence Thomas issued separate dissenting opinions:

Justice Ginsburg contended the Commission did not discharge any legislative duties in preparing the annotations because the role of the legislature was to make laws, not to construe statutes after their enactment. Justice Thomas expressed that the majority’s opinion will “come as a shock to the 25 other jurisdictions” that rely on arrangements similar to Georgia’s to produce annotated codes.

While the majority opinion is sure to turn heads of various state legislatures who have arrangements similar to Georgia’s to produce annotated codes, the licensees who produce these annotations for their own private distribution for profit, such as LexisNexis, Westlaw and others, should still be able to create copyrightable annotations, headnotes, pagination systems and other original matter from case opinions and federal and state statutes.Matthew J. Soroky is a Franchise and Intellectual Property Attorney at Lewitt Hackman.

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