In a recent 5-4 decision in Georgia v. Public.Resource.Org, Inc., the Supreme Court of the United States relied on the “government edicts” doctrine to preclude the State of Georgia from claiming copyright protection in certain works authored by its legislative bodies. The basis for this doctrine is that no party “can own the law.” The works in question were the portions of the Official Code of Georgia Annotated (“OCGA”) other than the actual laws – i.e., non-binding material such as summaries of judicial decisions, attorney general opinions, editor’s notes and other commentary concerning the code provisions. These annotation materials were created by a contractor
(Lexis) under a work-made-for-hire agreement that by law made the State of Georgia the author and owner of the copyright in such materials. In exchange for its extensive role in creating the annotation materials, Lexis had exclusive rights that precluded others from reproducing or distributing the OCGA code in full. The decision in Public.Resource.Org has significant ramifications for the legal publishing industry, as many other states and territories also rely on contractors to create annotation materials for their legislative codes.
Government Edicts Doctrine
The government edicts doctrine derives from a trio of 19th century Supreme Court decisions, including its very first copyright decision, Wheaton v. Peters, 8 Pet.
591 (1834). In Peters, the Court held that no reporter of its decisions could hold a copyright in the text of the decisions and that the Justices could not confer such a copyright on any reporter. About a half a century later, in Banks v. Manchester, 128 U.S. 244 (1888) (involving reported decisions of Ohio courts) and Callaghan v. Myers, 128 U.S. 617 (1888) (involving reported decisions of Illinois courts), the Court applied the doctrine to hold that non-binding, explanatory legal materials created by the sitting judges themselves were not copyrightable (Manchester), but were copyrightable when authored by persons who held no governmental authority to expound on the law (Myers).
facts in Public.Resources.Org presented a new context for application of the government edicts doctrine – works explaining or expounding on the work of the legislature. Public.Resources.Org, Inc., a nonprofit dedicated to facilitating public access to government records, posted a digital version of the OCGA online where it could be downloaded by anyone free of charge and also distributed copies to various organizations and state officials. The commission of the Georgia Legislature responsible for the creation of the OCGA sued for infringement of the state’s copyright in the annotation materials and prevailed at the District Court. The Eleventh Circuit reversed and held that the annotation materials were not copyrightable under a three-part test that considered the state’s
role in their creation, the nature of the work and the process by which they were created.
The Supreme Court upheld the reversal but on reasoning different than that of the Eleventh Circuit. Writing for the majority (including Justices Sotomayor, Kagan, Gorsuch and Kavanaugh), Chief Justice Roberts found that the government edicts doctrine created a straightforward rule for the copyrightability of the works of state governments that turns solely on the identity of the author of the work in question. As with the works of judges at issue in Peters and Manchester, when legislators create works in the course of their official duties, they cannot be considered authors of those works. The same applies to all works created
in the course of official duties. Notwithstanding Lexis’s extensive involvement in developing the annotation materials in the OCGA, they were ultimately prepared by “an arm of the legislature” in the course of the its “official duties.” Thus, the government edicts doctrine precluded Georgia’s claim of copyright ownership – the annotation materials were public domain works free to be copied and distributed by all, including Public.Resource.Org, Inc.
Georgia’s unsuccessful arguments against application of the government edicts doctrine to the annotation materials included that depriving such materials of copyright protection would make it more difficult to enlist private parties like Lexis to prepare affordable annotated codes for public distribution. Reinforcing a
theme of his tenure as Chief Justice, Roberts flatly rejected that argument by noting that appeals to policy should be directed to Congress, not the courts.
The four dissenters either took issue with the validity of the majority’s single-minded “identity of the author” rule for copyrightability (Thomas, Alito, and in part, Breyer) or its conclusion that the creation of the annotated materials was in fact a legislative function to which the government edicts doctrine should apply (Ginsurg and Breyer).
In his biting dissent, Thomas also expanded on Georgia’s policy concern about impact of the Court’s ruling on the viability of “official annotations,” but Roberts’s opinion appears to leave room to largely moot that
concern. The holding that the author of the annotation materials was the state legislature rests heavily on the work-made-for-hire agreement that made Georgia the author of the work and the fact that the legislation enacting the OCGA merged the annotation materials with the actual code A restructuring of the arrangement with private party contractors like Lexis that vested copyright ownership in them and/or employed different enacting legislation could result in the “private author” outcome of Myers instead of the “public author” rule of Public.Resource.Org.