U.S. Supreme Court Rules Copyright Protection Does not Extend to Annotations in Georgia’s Official Annotated Code

On Monday, April 27, 2020, in Georgia v. Public.Resource.Org, Inc., the United States Supreme Court ruled that annotations accompanying the Official Code of Georgia Annotated were not protected under copyright law. In a 5-4 decision, the Supreme Court ruled in favor of Public.Resource.Org, a nonprofit company devoted to public access to government records and legal materials.

The Official Code of Georgia Annotated (OCGA), which is the State of Georgia’s one official code, contains non-binding annotations for each statutory provision contained therein. The OCGA was put together by the State of Georgia’s Code Revision Commission, a group comprised mostly of Georgia legislators, funded by the Georgia legislature, and staffed by the Office of Legislative Counsel. The annotations were produced in accordance with a work-for-hire agreement between the Code Revision Commission and Matthew Bender & Co. Inc., a division of the LexisNexis Group. The work-for-hire agreement specified that LexisNexis would draft the annotations under the supervision of the Code Revision Commission. Further, the agreement stated that any copyright in the OCGA is held by the the State of Georgia.

Chief Justice John Roberts, writing for the majority, held that the OCGA annotations are ineligible for copyright protection under Banks v. Manchester, 128 U.S. 244 (1888), which outlines the government edicts doctrine. Banks, in essence, holds that no one can own the law. “Because judges are vested with the authority to make and interpret the law, they cannot be the ‘author’ of the works they prepare ‘in the discharge of their judicial duties,'” (citing Banks, 128 U.S., at 253). Since legislators also have the authority to make law, Chief Justice Roberts reasoned that, under Banks, legislators, too, could not be considered “authors.” By extending Banks to legislators, the government edicts doctrine thus applied to work performed by legislators in their capacity as legislators.

The sole “author” of the annotations is the Code Revision Commission, which qualified as a legislator, as a matter of state law, since “the Commission wields the legislature’s authority when it works with Lexis to produce the annotations.” Chief Justice Roberts then cited Harrison Co. v. Code Revision Comm’n, 244 Ga. 325, 260 S.E.2d 30 (1979), to rule that the “preparation of the annotations is under Georgia Law an act of ‘legislative authority.'” Considering the Code Revision Commission’s “role as an adjunct to the legislature and the fact that the [Code Revision] Commission authors the annotations in the course of its legislative responsibilities,” the Supreme Court held that the annotations in the OCGA “fall within the government edicts doctrine and are not copyrightable.”

Justice Ruth Bader Ginsburg wrote a dissent to the majority’s opinion, which was joined by Justice Stephen Breyer. In her dissent, Justice Ginsburg argued that the annotations should be copyrightable and not within the purview of the government edicts doctrine since the annotations were not done in a legislative capacity. Justice Ginsburg clarified this argument by distinguishing that (1) annotating begins only after lawmaking ends; (2) annotations are neutrally cast and are descriptive rather than prescriptive; and (3) annotations aim to “inform the citizenry at large” and “do not address, particularly, those seated in legislative chambers.”

Justice Clarence Thomas also dissented to the majority’s opinion. Justice Thomas’s dissent was joined in full by Justice Samuel Alito and joined in part by Justice Stephen Breyer. In his dissent, Justice Thomas reviewed the three 19th-century precedents which provide the foundation for the government edicts doctrine. In reviewing these cases, Justice Thomas argued that the cases “do not exclude from copyright protection notes that are prepared by an official court reporter and published together with the reported opinions.” Justice Thomas extended this reasoning to statutes and regulations and argued that accompanying notes lacking legal force can be protected by copyright. He supported this argument by taking an in-depth historical look at “the origin or validity of the rule [the cases] announced,” along with a reading of the text of the Copyright Act. He further argued that permitting annotations to be copyrighted “does not run afoul of any of these possible justifications for the government edicts doctrine.” In addition to his criticisms of the majority’s rule as flawed textual and precedential matters, Justice Thomas wrote that “[t]he majority’s rule will leave in the lurch the many States, private parties, and legal researchers who relied on the previously bright-line rule.”

Disclaimer: Justia submitted an amicus curiae brief in support of Public.Resource.Org in this case. Justia’s CEO, Timothy J. Stanley, is a Board of Trustees member and general counsel of Public.Resource.Org.

Additional Reading

Supreme Court rules Georgia can’t put the law behind a paywall, Ars Technica (April 27, 2020)

Georgia v. Public.Resource.Org, Inc., 590 U.S. ___ (2020)