April 28, 2020
By: John T. Spangenberger
In Georgia et al. v. Public.Resource.Org, Inc., the U.S. Supreme Court held that states do not own the copyright in works that are created by legislators in the course of their official duties. This bar on copyrightability applies regardless of whether or not the work being created has the force of law.
The State of Georgia’s only official code—the Official Code of Georgia Annotated (OCGA)—includes every statute currently enforced as well as a set of non-binding annotations appearing beneath each statutory provision. The annotations are prepared by Georgia’s Code Revision Commission and include summaries of judicial opinions construing each provision and other reference material.
Copyright protection extends only to “original works of authorship.” 17 U.S.C. § 102(a). Under the longstanding government edicts doctrine, judges are not considered “authors” of opinions and other works that they create in their capacity as judges. Because they are not the authors of the work, judges cannot assert copyright in their work. The underlying principle is that no one can own the law and that judicial works should be publicly available and accessible.
Public.Resource.Org (“PRO”), a nonprofit dedicated to facilitating public access to government records and legal materials, disseminated copies of the OCGA online and in paper form. Georgia sued PRO for infringing its copyright in the OCGA annotations, arguing that the annotations are eligible for copyright protection because they do not carry the force of law.
The Court sided with PRO, concluding that legislators are not “authors” of the works that they produce in their official capacity, regardless of whether the work is enforceable law; their works thus fall outside of the Copyright Act’s protection. Because legislators, like judges, have the authority to make law, the Court extends the government edicts doctrine to legislators as well as judges. Thus, legislators cannot be considered “authors” of works that they create in the course of their official legislative duties, regardless of whether the work has the force of law. The Court analogized to judges’ headnotes and syllabi, which are also non-binding yet are still exempt from copyright protection under the doctrine.
The Court thus reasoned that copyright protection does not extend to works (1) created by judges and legislators (2) in the course of their judicial and legislative duties, regardless of whether the works carry the force of law.
The Court found that exception applicable here, concluding that the Code Revision Commission acts as an arm of the legislature for the purpose of producing annotations, which are approved by the legislature. Furthermore, the Georgia Supreme Court had previously held that the duties of the Commission are “within the sphere of legislative authority” under the Georgia Constitution.
The Court also found that drafting the annotations falls within the Commission’s legislative duties. Although the annotations largely summarize other materials and do not purport to provide authoritative explanations of the law, they are relevant to understanding those laws. The annotations prepared by the Commission thus fall within the definition of work produced in the course of the Georgia Legislature’s legislative duties.
The Court warned that the opposite outcome would lead to two classes of publicly available legal resources: an “economy-class version,” containing the bare, non-copyrightable statutory text, and a paid, “premium-class version,” containing hypothetically copyrightable annotations, similar to the OCGA. Readers of the economy-class version would be denied the history and application of these statutes by the courts. The Court opts for a path that skirts such a thorny division in access to justice: instead of examining whether given judicial or legislative material carries the force of law, the Court asks only whether the author is a judge or legislator. If so, the work is not copyrightable and is freely accessible to all.
Copyright protection does not extend to works created by judges and legislators in the course of their judicial and legislative duties, regardless of whether the works carry the force of law. Whether an entity is considered a “legislator,” and whether that entity’s work falls within the course of its legislative duties, is a fact-sensitive inquiry and can extend beyond the legislature to legislative commissions or other “arms” of the legislature.
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