April 27, 2020

Supreme Court Decides Georgia v. Public.Resource.Org, Inc.

On April 27, 2020, the U.S. Supreme Court decided Georgia v. Public.Resource.Org, Inc., holding that the annotations to the Official Code of Georgia Annotated are not eligible for copyright protection because the annotations are created by the Georgia legislature in the course of its legislative duties and are therefore covered by the “government-edits doctrine.”

The OCGA is Georgia’s one official code. It includes the text of every Georgia statute currently in force as well as a set of annotations that go with each statutory provision. The annotations generally include summaries of judicial decisions and state attorney general opinions that apply the given statutory provision, as well as a list of other reference materials. The OCGA and its annotations are assembled by a state entity called the Code Revision Commission, which the Georgia Legislature established to recodify Georgia law and contract with a third party to produce the annotations subject to the Commission’s supervision. A majority of the Commission’s members must be members of the Georgia Senate or House of Representatives. The Commission submits its proposed statutory text and accompanying annotations to the Georgia legislature for approval.

Public.Resource.Org (PRO) posted a digital version of the OCGA and its annotations on various websites, where the public could download it without charge. The State sued PRO for copyright infringement with respect to the annotations (the State acknowledged that the statutory text itself was not subject to copyright protection). The District Court ruled in favor of the Commission, holding that the annotations were eligible for copyright protection, but the U.S. Court of Appeals for the Eleventh Circuit reversed, holding that the “government-edicts doctrine” deprived the annotations of copyright eligibility.

The Supreme Court affirmed, holding that the annotations to the OCGA are not eligible for copyright protection under the “government-edicts doctrine.” While the doctrine has traditionally been applied to judges, the Supreme Court held that it extends to works authored by legislators in the course of their official duties and applies regardless of whether the material carries the force of law. The Court emphasized that the doctrine bars public officials responsible for creating the law from being considered the “authors” of whatever work they perform in their capacity as lawmakers because that work is deemed part of the exposition and interpretation of the law and must be free to all, whether or not it has the “force of law.”

There were two steps to the Court’s analysis. First, the Court concluded that the annotations are “authored” by the Georgia legislature because the Commission produces the annotations through a work-for-hire agreement with a private company and the Commission is an arm of the Georgia legislature for purposes of producing the annotations because it is created by the legislature, consists largely of legislators, and receives funding and staff designated by law for the legislative branch. Second, the Court concluded that the Commission creates the annotations in the course of discharging its legislative duties. Even though the annotations are not officially enacted into laws through bicameral presentation, the Commission’s preparation of the notations is an act of legislative authority under Georgia law and provides commentary and resources that the legislature has deemed relevant to understanding the laws. The question, according to the Court, is not whether the work has been officially enacted into law, but whether the work is a product of the exercise of legislative duty.

The Court rejected Georgia’s argument that the annotations are subject to copyright protection because Section 101 of the Copyright Act specifically lists “annotations” among the kinds of work eligible for protection. The Court explained that Section 101 requires “an original work of authorship” and that under the government-edicts doctrine, judges and legislators cannot serve as “authors” when they produce works in their official capacities.

Chief Justice Roberts delivered the opinion of the Court in which Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justices Thomas filed a dissenting opinion, in which Justice Alito joined and Justice Breyer joined in part. Justice Ginsburg filed a dissenting opinion, in which Justice Breyer joined.

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