Does the government edicts doctrine render uncopyrightable works of government officials that do not carry the force of law?
The Supreme Court will determine whether the government edicts doctrine renders uncopyrightable the annotations in the Official Code of Georgia Annotated (“OCGA.”) The government edicts doctrine prevents individuals from copyrighting government edicts—such as judicial decisions and statutes. The State of Georgia and the Georgia Code Revision Committee (“Georgia”) argue that the annotations—which were primarily written by private actors and do not carry the force of law—are beyond the scope of the government edicts doctrine. PublicResource.Org disagrees, arguing that because (1) the annotations are published under a state authority, and (2) Georgia’s Supreme Court treats the OCGA annotations as authentic sources of legal meaning, the annotations carry the force of law and are thus uncopyrightable under the government edicts doctrine. The Court’s decision will have implications for organizations’ abilities to provide low-cost or free public access to state laws and non-legal codes and standards (e.g. construction codes and standards).
Questions as Framed for the Court by the Parties
Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.
The Official Code of Georgia Annotated (“OCGA”) is Georgia’s official compilation of all its laws and has been published yearly since 1982. State of Georgia v. Public.Resource.Org at 5. Both private and public entities wrote the OCGA. Id. at 2–3. The OCGA contains both statutory text and annotations of the text, which help to explain the law. Id. at 3. The OCGA’s annotations include, among other things: (1) summaries of State Bar advisory opinions and opinions of the Attorney General of Georgia; (2) law review article excerpts; (3) editors’ notes and commentaries; (4) history and repeal lines; and (5) cross references. Id.
These annotations do not have the force of law; but, Georgia explicitly considers them to be part of the official Code—similar to the Code’s statutory text. Id. at 6, 8. Georgia’s inclusion of both statutory text and annotations in its official code sets it apart from the majority of other states and makes determining the OCGA’s authorship particularly difficult. Id. at 2–3.
Georgia contracts with Matthew Bender & Co., an operating division of LexisNexis (“Lexis”), to write the OCGA’s annotations. Id. at 5–6. Under the contract, Lexis bears the costs of editing, publishing, and distributing the OCGA. Id. at 9. In exchange, Lexis has the exclusive right of publication, although Georgia retains the copyright to the annotations. Id. The contract also requires Lexis to provide a free, unannotated, online Code, and to limit the OCGA’s price to $404. Id. at 8. It also allows Lexis the exclusive right to reproduce the OCGA in print, CDs, and online versions. Id. Georgia’s Codes Revision Commission (“Commission”) monitors Lexis’ work and maintains the right to edit anything Lexis writes for the OCGA. Id. at 7. The Commission, created in 1977 by the Georgia General Assembly, consists of several Georgia state officials. Id. at 8.
In 2013, Public.Resource.Org (“PRO”), whose mission is to increase access to government materials, bought all 186 printed volumes of the OCGA and its supplements; it then made them freely available to any visitor to PRO’s website. Id. at 9. PRO also distributed the OCGA through print, CDs, and online versions. Id. Georgia sent PRO cease-and-desist letters, requesting that it stop distributing these materials because it infringed on Georgia’s copyrighted work. Id. at 10. When PRO refused to comply, the state of Georgia filed suit in the District Court for the Northern District of Georgia (the “District Court”) asking for the Court to enjoin PRO from distributing the materials. Id.
PRO acknowledged that it had published the official annotated code, but denied that Georgia had a valid copyright in the material and sought a declaratory judgment that Georgia could not hold a copyright in the annotated material. Id. The District Court denied PRO’s request for a declaratory judgment and held that the OCGA’s annotations were copyrightable. Id. The U.S. Court of Appeals for the Eleventh Circuit (the “Eleventh Circuit”) reversed the District Court’s holding, finding that the OCGA’s annotations were uncopyrightable. Id. at 57. It reasoned that the work was a part of the public domain as a “sovereign expression of the People by their legislature.” Id. Georgia appealed to the United States Supreme Court which granted a writ of certiorari on June 24, 2019.
THE SCOPE OF THE GOVERNMENT EDICTS DOCTRINE
The petitioners, the State of Georgia and the Georgia Code Revision Committee (“Georgia”), argue that the “government edicts doctrine” is not so expansive as to prevent Georgia from copyrighting its annotations in the OCGA. Brief for the Petitioners, State of Georgia, et al. at 28–29. The government edicts doctrine exempts certain government edicts—such as judicial decisions and statutes—from copyright protections. Id. Georgia further contends that the OCGA’s annotations do not carry the force of law and therefore are copyrightable. Id. at 21–22, 40. Georgia explains that the OCGA annotations do not carry the force of law because the Georgia General Assembly does not follow the legislative process that is required to enact laws when publishing the annotations. Id. Georgia further contends that Georgia’s legislature explicitly states that the annotations do not have any legal effect. Id. at 46–47. Georgia argues that its position is supported by Wheaton v. Peters, Banks v. Manchester, and Callaghan v. Myers, where the Supreme Court held that although judicial decisions are not copyrightable, annotations based on those decisions are copyrightable because they do not carry the force of law. Id. at 31–35. Georgia notes that the Court in these cases held that the annotations in question were copyrightable despite the fact that they were authored by government officials and were a part of an “official” document. Id. Georgia emphasizes that the Supreme Court should not engage in judicial law making by expanding the government edicts doctrine to works that do not carry the force of law—such matters of law should be left to Congress. Id. at 44.
The respondent, Public.Resource.Org, Inc. (“PRO”), counters that works need not necessarily carry the force of law to be governed by the government edicts doctrine. Brief of Respondent, Public.Resource.Org, Inc. at 19. Although annotations to judicial opinions were deemed copyrightable in Wheaton, PRO argues that the focus should instead be on the fact that the annotations in Wheaton represented private authorship and were not published under the state’s authority. Id. at 22, 24–25. Under Banks, as long as the work is an exercise of governmental authority and is seen by the public as authoritative, the work cannot be copyrighted. Id. at 30. PRO explains that the OCGA is an “official” document that is authoritative on the understanding of the code contained therein, and courts regularly treat the OCGA’s non-statutory portions as legal authority. Id. at 45–47. PRO further asserts that the OCGA and its annotations derive their authority from the same meaningful legislative process that creates laws. Id. at 50. Therefore, PRO concludes, even under Georgia’s force of law argument, Georgia fails because the OCGA does in fact carry some force of law. Id. at 45–47.
THE RELEVANCE OF PRIVATE AND STATE AUTHORSHIP
Georgia states that the Copyright Act allows annotations created by private parties to be copyrighted, and because the OCGA is created by a private party, it is copyrightable. Brief for the Petitioners at 22. The Copyright Act further states, Georgia argues, that “works made for hire” by a private author for the government are also copyrightable. Id. at 25. The OCGA’s act of merging copyrightable annotations with uncopyrightable law, Georgia further asserts, does not render the annotations uncopyrightable. Id. at 23–24. Georgia supports its position by citing Howell v. Miller, in which a similar compilation of laws and their annotations were held to be copyrightable, even though this compilation was treated as legal authority by courts of that jurisdiction, because the annotations were written by a private party. Id. at 42. Alternatively, Georgia argues that the Copyright Act only prevents federal work product from being copyrightable, it does not render uncopyrightable annotations created by state governments. Id. at 22–23. Citing to legislative history, Georgia notes that Congress originally intended to exclude the work of state governments but declined to do so when this faced strong opposition. Id. at 27. Therefore, Georgia concludes, the OCGA is copyrightable even if state government officials were involved in its creation. Id. at 23.
PRO counters that although the Copyright Act allows authors to copyright “original works of authorship,” when government officials create a work and it is “published under the authority of the state,” the work lacks authorship because it belongs to the public. Brief of Respondent at 22–23. Therefore, PRO explains that under the government edicts doctrine, the work cannot be copyrighted by any individual or organization. Id. PRO contends that the OCGA cannot be deemed as authored by a private party as its was significantly controlled and supervised by the Code Commission, a legislative authority, essentially making the OCGA a work of the legislature and therefore uncopyrightable. Id. at 51–53. PRO responds to Georgia’s discussion of Howell by contending that Howell was allowed to copyright his work because he wrote the annotations in question before the legislature passed a law deeming those works as authoritative. Id. at 33. PRO also counters Georgia’s alternative scope argument by maintaining that Congress intended the interpretation of the Copyright Act to be much broader than Georgia suggests. Id. at 37. PRO notes that the United States also recognizes that there is nothing in the Act that prevents it from applying to both federal and state government works. Id. at 38–39. Therefore, PRO concludes that the government edicts doctrine covers the OCGA as a work of state government officials. Id.
THE LEGISLATIVE PURPOSE OF THE GOVERNMENT EDICTS DOCTRINE
Congress created the government edicts doctrine, Georgia explains, in order to uphold the public’s due process rights by protecting their access to laws. Brief for the Petitioners at 49–50. Georgia argues that the Supreme Court should adhere to this interpretation of the doctrine’s purpose and scope, established by Congress. Id. at 21. Georgia states that it protects the public’s due process rights by freely disseminating Georgia’s statutes online. Id. at 50. Moreover, Georgia continues, anyone who wants to access the OCGA can do so at various public libraries in the State. Id. at 51. Georgia argues that PRO has not provided evidence of any individual suffering from annotations being copyrighted. Id. Georgia contends that due process concerns must be weighed against the high cost of alternatives to Georgia and its taxpayers. Id. at 52. If Georgia cannot use copyright incentives to pay private parties for the creation of such annotations, Georgia argues that it will have to use taxpayer money to publish such works instead. Id. Georgia points to the Act’s history, asserting that Congress knew of states facing such economic constraints and intended to allow states to use economic incentives flowing from copyrights to create works such as the OCGA. Id. at 4, 26.
PRO counters that the government edicts doctrine intends to protect works published under the authority of the State, regardless of whether they carry the force of law. Brief of Respondent at 36. PRO states that even though Congress has not made any changes to the text of the doctrine itself, Congress intended to leave the development of the doctrine’s interpretation up to the courts. Id. Under the Supreme Court’s precedents, as PRO asserted earlier, the government edicts doctrine protects those works of the government that are published under the authority of the State. Id. at 30. PRO argues that limiting the government edicts doctrine to works that carry the force of law would open up the possibility of copyrighting all legislative and judicial documents that are critical to private decision-making and the public’s understanding of the law such as committee reports, non-binding regulatory decisions, and government-created guidelines that explain the law. Id. at 41–43. Alternatively, PRO asserts that because the OCGA is a single “merged” document, the whole document carries the force of law and treated as such by the Georgia Supreme Court. Id. at 45–47. Therefore, PRO concludes, even under Georgia’s argument, the OCGA should be uncopyrightable under Congress’ historical interpretation of the government edicts doctrine which protects the dissemination of laws. Id. at 39–40. PRO continues that most other states do not copyright such annotated codes, and still function efficiently without any significant hardships. Id. at 55. Allowing the OCGA to be copyrighted will instead work against the public interest, PRO explains, because it will allow a private party to “monopolize the law.” Id. at 56.
PUBLIC HARM: INCREASED COST TO TAXPAYERS OR RIGHT TO FREE ACCESS?
Matthew Bender & Co., in support of Georgia, asserts that without a copyright, the public will struggle to obtain an official version of the law. See Brief of Amicus Curiae Matthew Bender & Co., Inc (“Matthew Bender”), in Support of Petitioner at 20. For example, Matthew Bender explains that Lexis has no incentive to create statutory annotations without an exclusive copyright covering their work. Id. Therefore, it contends that Georgia must pay Lexis for the costs associated with creating the annotations. Id. It notes that this increased cost will likely be passed onto the taxpayers. Id. The State of Arkansas et al. agrees, adding that without the copyright revenue, third-party companies, like Lexis, will either stop producing the annotations or demand a high payment for their work. Brief of Amici Curiae the State of Arkansas et al., in Support of Petitioner at 20. Arkansas explains that this will force Georgia to choose between producing a subpar, unannotated code or paying high prices to these companies—likely financed with taxpayer money. Id. The Copyright Alliance (the “Alliance”), also in support of Georgia, cautions that states cannot easily find the funds to pay high prices for annotations without resorting to taxpayer money. Brief of Amicus Curiae the Copyright Alliance (the “Alliance”), in Support of Petitioner at 22. It notes that states could choose to cover the cost by diverting funds from other programs or services, but this too would ultimately harm taxpayers who relied on such services. Id. at 27. Therefore, the Alliance argues that third-party companies, like Lexis, are in the best position to create such annotations. Id. at 22–23. It explains that most states do not have the resources or staff to write and publish an annotated code. Id. Therefore, it contends, companies like Lexis, who already have a “skilled workforce and wealth of resources” to devote to such a project, making it easier and less costly for them—rather than states—to take on such projects. Id. at 18.
The Center for Democracy and Technology and the CATO Institute (collectively, the “Center”) counter that copyrighting statutory annotations harms the public by hindering their access to the official version of the law. Brief of Amicus Curiae of The Center for Democracy and Technology and Cato Institute, in Support of Respondent at 8–9. It explains that the government has the duty to create and disseminate the law. Id. at 9. Thus, it contends, the government needs no financial incentive to produce and publish the official version of the law. Id. at 8. Furthermore, the Center argues that the public will be acutely harmed without free access to the official Georgia state law given the societal importance of law. Id. at 12. The Center adds that the public is further harmed by Georgia’s current copyright system, as it essentially forces the public to pay twice for the official law: once through government taxes and again by Lexis’s $404 price tag on the OCGA. Id. at 13–14. The Reporters Committee for Freedom of the Press et al. (the “Committee) agrees, stressing the importance of having an official, publicly available, annotated code. Brief of Amici Curiae of the Reporters Committee for Freedom of the Press et al. (the “Committee”), in Support of Respondent at 16. It explains that the public—especially those not in the legal profession—can struggle to navigate the law. Id. This struggle is alleviated, argues the Committee, by having an official annotated code that explains the law. Id. The Committee notes that this is particularly important for journalists who often write about legal issues yet usually have no legal training or legal resources. Id.
DISINCENTIVIZING COPYRIGHT HOLDERS VS. HARMING DISADVANTAGED POPULATIONS
Matthew Bender Co., in support of Georgia, argues that removing Lexis’s copyright will disincentivize third-party companies from creating statutory annotations as they will no longer be compensated for their work. Brief of Matthew Bender at 4. The Alliance agrees, asserting that removing the copyright from Lexis’s annotations runs counter to the purpose of such copyrights. Brief of Alliance at 15. It explains that the purpose of copyrights is to “promote the progress of science and useful arts.” Id. The Alliance emphasizes that copyrighting statutory annotations is important because it encourages businesses to create such works and ensures that this legal knowledge will be passed onto the public. Id. at 18. Furthermore, the Alliance cautions that removing the copyrights could have far-reaching effects. Id. at 17, 28. For example, it explains that Georgia has copyrights on approximately “254 iterations, supplements, and sections of the OCGA”—all of which are threatened by this decision. Id. at 28. The Alliance also contends that this decision could affect the statutory codes of at least 21 other states, and Puerto Rico and the U.S. Virgin Islands, who copyright their official statutory annotations. Id. at 29. The Alliance goes further, warning that removing the copyright over statutory annotations could have detrimental effects on scholarly writing in general. Id. at 17. It explains that choosing to remove copyrights over statutory annotations could affect other writings that use material from the public domain. Id. The Alliance cautions that this would ultimately result in “a nationwide erosion of copyright law.” Id.
A collection of law students, solo and small-firm legal practitioners, and legal educators (the “Collection”), in support of PRO, counters that copyrighting the statutory annotations harms the citizenry—especially those who are studying or practicing law. Brief of Amici Curiae 39 Law Students, et al., in Support of Respondents at 5. The Collection explains that official statutory annotations are imperative to understanding and interpreting the law. Id. Furthermore, it notes that although some large law firms can pay for the annotated code, law students and small-firm practitioners will have difficulty accessing such material—especially if there is a need to access legal material from more than one state. Id. at 6. It adds that many small practices have less affluent clients, so unlike large law firms, solo and small-firm practitioners will be unable to transfer the costs of statutory annotations onto their clients. Id. at 7. Furthermore, the Committee agrees, adding that lawyers and law students consider official annotated codes to be a “valuable legal research tool” and therefore such codes should be easily accessible. Brief of the Committee at 15. The Committee challenges the idea that such legal professionals—and members of the public—can easily access the code at a number of public libraries. Id. at 17. It argues that many individuals do not live near a library that allows access to the annotated code. Id. The Tennessee Coalition for Open Government and the Human Rights Defense Center (the “Coalition”) agrees, arguing that a free, easily accessible, annotated code is imperative to ensuring an open government and allowing citizens to understand their government and the rule of law. Brief of Amici Curiae for the Tennessee Coalition for Open Government and The Human Rights Defense Center, in Support of Respondents at 7. Forcing citizens to pay for the annotated code or travel to a library to access it, contends the Coalition, is beyond many citizens’ means and ability. Id. at 5. For example, it cautions that indigent citizens, pro se litigants, and inmates will face an especially high burden in paying to access the OCGA, thereby creating informational asymmetries between the affluent and the poor and allowing some to access a “superior version of the law.” Id. at 12, 18.
- Kristin Lamb: SCOTUS to Consider if State Legal Texts May Be Copyrighted in Georgia v. Public.Resource.Org, IPWatchdog, Inc. (Aug. 21, 2019).
- Adina Solomon: Can States Copyright Annotations to Their Own Laws?, U.S.News (Aug. 22, 2019).
- Ed Walters: Georgia v. Public.Resource.org: Ending Private Copyright in Public Statutes, Medium (June 27, 2019).
- Lewis R. Clayton & Eric Alan Stone: Supreme Court to Decide Whether the ‘Government Edicts’ Doctrine Precludes Copyrighting Annotations to the Official Code of Georgia, Law.com (Sept. 10, 2019).