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Supreme Court Expands and Clarifies Copyright Law’s Government Edicts Doctrine

By Brian D. Wassom

When may States obtain copyright protection in their expressive works? On April 27, 2020, a sharply divided 5-4 Supreme Court answered this question and in the process brought additional clarity to the relatively obscure "government edicts" doctrine. Georgia v. Public.Resource.org.

The work at the center of the case is the Official Code of Georgia Annotated. This publication consists of the text of the state's statutes interleaved with supplemental materials, including citations to, and summaries of, case law, law reviews, attorney general opinions, advisory opinions of the State Bar, and research references. Decades ago, Georgia's legislature had established a Code Revision Commission to create these annotations. In practice, the actual work is delegated to LexisNexis.

Although it appears that the Commission rarely, if ever, exercises its editorial discretion over LexisNexis' work product, it nevertheless retained absolute discretion, and the statutorily mandated process for drafting the non-statutory portions of the Official Code of Georgia Annotated leaves virtually no room for private decision-making on the contents of the annotations. Further, the contract between Georgia and LexisNexis specifies that the OCGA is a work made for hire. Therefore, for copyright purposes, this publication is authored by the State of Georgia.

Although all of the other leading private legal research services publish their own annotations on Georgia law, the OCGA is the only "official" version. Evidence in and outside the record supported the common-sense conclusion that this imprimatur from the same legislative body that authored the statutory law itself incentivizes practitioners within the state to purchase the OCGA.

Although 17 U.S.C. §105 disqualifies "any work of the United States Government" from copyright protection, there is no similar blanket prohibition for state-authored works. Georgia registered the OCGA and used its copyright interest to control of the publication of the work and to set an artificially low sale price. Revenues were collected by LexisNexis to reimburse the upfront cost of producing the annotations. (The record in the lower court revealed this arrangement to be unique; in other states with official annotations, the work on annotations is done in-house or is contracted as a fee-for-service arrangement.)

As an advocacy group for free public access to government documents, Public.Resource.Org (PRO) posted a complete, freely accessible copy of the entire OCGA online. Georgia sued for infringement of its copyright in the annotations, while conceding it could not copyright the statutory text itself. (But not for lack of trying; the state had already made, and lost, that argument in State of Ga. ex rel. General Assembly of Ga. v. Harrison Co., 548 F. Supp. 110 (N.D. Ga. 1982)).

The Eleventh Circuit ruled in PRO's favor, holding that the OCGA was ineligible for copyright protection under the government edicts doctrine. This body of law stemmed from a trio of 18th Century Supreme Court decisions that forbade copyright protection the text of state laws, municipal ordinances, court decisions, and similar official documents. The Eleventh Circuit's analysis focused on the nature of the OCGA, finding it significant that it was authored "by public officials entrusted with sovereign, legislative authority" and that the work itself, in practice, was sufficiently "law-like" to be "authoritative." "Having been merged by the General Assembly with the statutory text into a single, unified edict, stamped with the state's imprimatur, and created and embraced by the same body that wrote the text that they explicate," the panel wrote, "the annotations have been suffused with powerful indicia of legal significance that is impossible to ignore." Taken together, these considerations persuaded the Eleventh Circuit that the OCGA was "attributable to the constructive authorship of the People," and thus public domain.

Supreme Court Decision

A five-Justice Supreme Court majority of Roberts, Sotomayor, Kagan, Gorsuch and Kavanaugh affirmed the holding that the OCGA is an uncopyrightable government edict. But the Justices also endeavored to simplify the analysis used to reach this result. Rather than defining an "edict" based on whether the work has the force of law—like a statute, regulation, or judicial ruling—the PRO Court looked to what it called "a straightforward rule based on the identity of the author."

The holding of the case is 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." This approach, according to the majority, lined up better with the Court's precedents that had denied protection to non-binding, explanatory legal materials made by judges, such as annotations and dissenting opinions.

The dissenting opinions took issue with nearly every aspect of the majority's ruling, and would have upheld the state's copyright. The strength of their views suggest that the Court is unlikely to meaningfully expand the government edicts doctrine or to otherwise erode states' ability to take advantage of copyright law in future cases. How the lower courts parse and apply the majority's "straightforward" holding, however, remains to be seen.

Regardless of how the law develops on this point. state agencies that are accustomed to claiming copyright in state-authored materials because they are not legally binding need to re-evaluate that stance based on who authored the works, and in what capacity.

Brian D. Wassom is a partner at Warner Norcross + Judd LLP in Detroit, Michigan. He authored an amicus curiae brief for AIPLA in support of PRO.

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