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28 September 2020
The Supreme Court's recent decision in Georgia v Public.Resource.Org, Inc (18-1150, 590 US (2020)), may seem like it boiled down to an esoteric argument over the correct interpretation of a series of cases decided in the 19th century – and it did – but the ramifications of the decision will be felt in 2020 and beyond. The court, by a slim five-to-four majority, held that the annotations in Georgia's official code are not copyrightable. The alliances in the decision were somewhat unusual. The majority opinion was written by Chief Justice Roberts and joined by the four most junior justices, Sotomayor, Kagan, Gorsuch and Kavanaugh. There were two dissents, one written by Justice Thomas, joined completely by Justice Alito and mostly by Justice Breyer, and one written by Justice Ginsburg that was also joined by Breyer.
The work at issue, the Official Code of Georgia Annotated (OCGA), is Georgia's only official code. Its annotations typically include:
The OCGA is assembled by the Code Revision Commission, which is a state entity that consolidates the existing law and bills into a single code and contracts with a third party to draft the annotations. A majority of commission members must be legislators, pursuant to Georgia law. The current annotations were created pursuant to a work-for-hire agreement with Matthew Bender & Co, a division of the LexisNexis Group. Lexis drafts the annotations under the commission's supervision and the agreement includes a provision that any copyright in the OCGA vests in Georgia. Public.Resource.Org, Inc (PRO) is a non-profit dedicated to opening public access to government records and legal materials. PRO posted the OCGA online and distributed copies. After sending multiple cease and desist letters, Georgia sued for copyright infringement regarding the annotations. PRO counterclaimed for declaratory judgment that the OCGA was in the public domain. The district court agreed with the commission that the OCGA's annotations are eligible for copyright but the 11th Circuit reversed, pursuant to the government edicts doctrine.
Roberts described the government edicts doctrine simply: "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."(1) The doctrine derives from three 19th century cases: Wheaton v Peters, Banks v Manchester and Callaghan v Myers. In Wheaton, the court rejected the plaintiff's assertion of a copyright interest in the justices' opinions.(2) In Banks, the court concluded that the official reporter of the Ohio Supreme Court did not have a copyright interest in the judges' opinions or non-binding explanatory materials prepared by the judges.(3) Callaghan was a companion case to Banks in which the court recognised that explanatory materials created by the reporter – rather than the justices – were copyrightable because they had been written by someone who did not make the law. The majority took these precedents together and concluded that "copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties".(4)
Therefore, the majority concluded that the annotations in the OCGA are not copyrightable because they were commissioned by legislators in the course of their duties, stating as follows:
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.(5)
The two dissents took slightly different tacks. Thomas's dissent focused on concerns of interpreting precedent and practical matters. His interpretation of the precedents cited by the majority was that while they disallow copyright of statutes and regulations, accompanying notes that "lack legal force" can be copyrighted.(6) He explained that annotations "do not represent the will of the people".(7) Further, because 25 jurisdictions (including both states and territories) have official annotated codes, most of which are similarly administered by third-party contractors supervised by legislators, this decision would have major consequences, such as a lack of annotations available for the public if there was no financial incentive for the third-party drafters to write them.(8) Meanwhile, Ginsburg's brief dissent articulated three reasons why the OCGA annotations could not be considered part of the Georgia legislature's law-making process – namely:
The decision reached in this case, whether born out of the most faithful interpretation of cases from the 1800s or from public policy concerns in 2020, will have consequences for the public. The annotated codes prepared with legislators' involvement or supervision will now be openly accessible to the public because they are not copyrightable. Going forward, since there will be no copyright protection and thus no financial incentive, it is less likely that a third-party publisher will partner with legislators to prepare such annotations, leading to a decline of legislator input and oversight of annotations. This may lead to a decline in work quality, if not outright elimination of those annotations in some states. There will be different consequences in various jurisdictions, depending on how those annotations are prepared and how quickly local legislatures move to address the issue. Both the majority and the dissent referenced Congress's ability to step in and adjust the law to change this outcome, but it is unlikely to be addressed quickly. For now, it remains to be seen whether the law – and the annotations that accompany it – will become more or less accessible to the public as a result.
For further information on this topic please contact Meaghan Kent or Katherine C Dearing at Venable LLP by telephone (+1 410 244 7400) or email (email@example.com or firstname.lastname@example.org). The Venable LLP website can be accessed at www.venable.com.
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