In its second copyright opinion this term, the U.S. Supreme Court held 5–4 that the “government edicts doctrine” prevents states from owning copyrights in annotated codes. See Georgia et al. v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020). Chief Justice Roberts authored the majority opinion, and Justice Thomas and Justice Ginsburg penned dissents.
The Official Code of Georgia Annotated (OCGA) contains every current Georgia statute (i.e., all of Georgia’s laws), along with non-binding annotations explaining each statute (e.g., summaries of judicial opinions applying the statutes or references to relevant secondary sources). The OCGA is created by Georgia’s Code Revision Commission, which is a part of the state’s legislative branch. By virtue of the Commission’s work, the state of Georgia claimed a copyright in the annotations within the OCGA—i.e., the parts of the OCGA other than the statutes themselves. Thus, when Public.Resource.Org (PRO) posted the OCGA online and distributed copies to others, Georgia sued PRO for copyright infringement.
The trouble with Georgia’s copyright claim, according to the Supreme Court, was that “no one can own the law.” Georgia, No. 18-1150, slip op. at 7. Under the government edicts doctrine, lawmakers cannot be considered “authors” for copyright purposes of any works they create in their capacity as lawmakers. Id. at 7–8. Thus, the Court explained, “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Id. at 9.
Applying the government edicts doctrine here, the Court noted first that the OCGA was created by legislators, as the Code Revision Commission is a state entity within the legislative branch comprising mostly legislators. Second, the Court reasoned that “the Commission creates the annotations in the ‘discharge’ of its legislative ‘duties.’” Id. at 10 (citing Banks, 128 U.S. at 253). Accordingly, the Supreme Court held that “the annotations in Georgia’s Official Code fall within the government edicts doctrine and are not copyrightable.” Georgia, No. 18-1150, slip op. at 11.
In so holding, the Court also addressed several of Georgia’s arguments, one being that the Copyright Act lists annotations as an example of a work eligible for copyright protection. The Court pointed out, however, that even annotations must still be a work of authorship to be protectable, and the government edicts doctrine precluded considering the Commission as an author. Id. at 11–12. Georgia also argued that the government edicts doctrine should not apply in this case because the annotations do not carry the force of law. But the Court explained that the rule focuses on the identity of the author, not the legal effect of the works that are created. Id. at 15–18. Accordingly, the Court affirmed the Eleventh Circuit’s ruling that the OCGA is not copyrightable. Id. at 18.
Interestingly, the two dissents revolved around the same general notion that the government edicts doctrine, while good law, should not apply to the annotations. Specifically, the thrust of Justice Thomas’s dissent was that under the doctrine, “statutes and regulations cannot be copyrighted, but accompanying notes lacking legal force can be.” Georgia, No. 18-1150 (Thomas, J., dissenting), at 4. And Justice Ginsburg argued that the OCGA annotations fall outside the purview of the doctrine because annotations written after a law is passed “do not rank as part of the Georgia Legislature’s lawmaking process.” Id. (Ginsburg, J., dissenting) at 2. Perhaps the most interesting concern moving forward, raised by Justice Thomas, is whether “States will stop producing annotated codes altogether.” Id. (Thomas, J., dissenting) at 17.
Regardless, the majority’s formalist construction of the term “author” in the Copyright Act is clear: a state cannot own a copyright in official code annotations if they were drafted by a legislative entity of that state. Of course, as the majority pointed out and even Justice Thomas agreed, “critics of [the Court’s] ruling can take their objections across the street, [where] Congress can correct any mistake it sees.” Georgia, No. 18-1150, slip op. at 13 (citation omitted); see also id. (Thomas, J., dissenting) at 17. Whether congressional action is likely, however, is probably dependent on whether such a need manifests in the coming years.