Supreme Court: State Official Annotations to Code Not Copyrightable

Intellectual Property Law

In Georgia v. Public.Resource.Org Inc.,1 in a 5-4 vote, the Supreme Court held that an annotated version of Georgia’s official state law code was not copyrightable and rejected a claim for copyright infringement that Georgia filed against Public.Resource.Org Inc., which had copied and distributed the state annotated code without paying. Chief Justice Roberts wrote for the majority opinion, and Justices Sotomayor, Kagan, Gorsuch and Kavanaugh joined.

The Court framed the issue and its holding at the outset as follows:

The Copyright Act grants potent, decades-long monopoly protection for “original works of authorship.” 17 U.S.C. § 102(a). The question in this case is whether that protection extends to the annotations contained in Georgia’s official annotated code.

We hold that it does not. Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s “authorship” requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.

We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law. . . . We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.

The Court explained that officials empowered to speak with the power of law cannot be the authors of works created as part of their official duties, and therefore such works cannot be copyrighted. The Court further reasoned that this rule also applies to non-binding, descriptive legal documents or works authored by a legislative body empowered with the authority to make law.

Since Georgia’s annotations were authored by an arm of the legislature as part of its legislative duties, i.e., a state entity called the Code Revision Commission, the government edicts doctrine prevented copyright protection. The Court acknowledged that the government edicts doctrine does have limits since it applies only to works created by those with authority to make or interpret the law.

The Court summarized its holding:

We hold that the annotations in Georgia’s Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the “authors” of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.

There were two dissenting opinions: a first dissent authored by Justice Thomas and joined by Justices Alito and Breyer, and a second dissent authored by Justice Ginsburg and also joined by Justice Breyer. Justice Thomas disagreed that the government edicts doctrine extended to non-binding, explanatory legal materials. Justice Ginsburg argued that materials authored by legislators during the lawmaking process should be in the public domain, but annotations did not qualify.

Takeaways:

While the Court held that under the government edicts doctrine, legislators are now included with judges as not being considered authors of the works they produce in the course of their official duties, the Court acknowledged that the doctrine does have limits. In particular, the Court acknowledged that the doctrine applies only to works created by those with authority to make or interpret the law—meaning anyone and any work outside this category would not be subject to the doctrine.

1 Georgia v. Public.Resource.Org Inc., ---- S.Ct. ----, 2020 BL ----, 2020 WL 1978707 (2020).


Irah Donner is a partner in Manatt’s intellectual property practice and is the author of Patent Prosecution: Law, Practice, and Procedure, Eleventh Edition, and Constructing and Deconstructing Patents, Second Edition, both published by Bloomberg Law.

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