Last week, the Supreme Court of the United States issued an opinion in Georgia v. Public.Resource.Org, No. 18-1150 (Apr. 27, 2020), holding that annotations in the Official Code of Georgia Annotated (OCGA) are not eligible for copyright protection.
The OCGA includes the text of every Georgia statute, as well as various non-binding annotations. It is assembled by a state entity established by the Georgia Legislature called the Code Revision Commission. Respondent Public.Resource.Org (PRO), without permission, posted a digital version of the OCGA, including its annotations, on various websites, where it could be downloaded by the public without charge. PRO also distributed copies of the OCGA to various organizations and Georgia officials. The Commission sued PRO on behalf of the Georgia Legislature and the State of Georgia for copyright infringement asserting copyright in the annotations. The district court ruled in favor of the Commission, concluding that the annotations were eligible for copyright protection because they had not been enacted into law and did not have the force of law. The Eleventh Circuit reversed, and the Supreme Court granted certiorari.
On review, the Supreme Court affirmed the Eleventh Circuit and held the annotations are ineligible for copyright protection. The Copyright Act grants monopoly protection for “original works of authorship.” 17 U.S.C. § 102(a). According to the Court, however, under the government edicts doctrine, judges and legislators are not “authors” that are eligible to protect the works they produce in the course of their official duties. The Court concluded that the Commission functions as an arm of the Georgia Legislature in producing the annotations, and creates the annotations in the discharge of its legislative duties. Therefore, the annotations are not copyrightable because their author is the Commission, which qualifies as a legislator.
The Court rejected the argument that for the government edicts doctrine to apply a work must have the force of law. According to the Court, that argument cannot be squared with its precedent – e.g., denying copyright protection to judicial opinions without excepting concurrences and dissents that carry no legal force; and withholding copyright protection from headnotes and syllabi produced by judges. These non-binding works are not copyrightable because of who creates them (judges acting in their judicial capacity), not because they have the force of law. The Court reasoned that the same goes for non-binding legislative materials produced by legislative bodies acting in a legislative capacity.