Opinion analysis: Sharply divided bench rejects Georgia’s copyright in annotations of Georgia statutes

The decision this morning in Georgia v Public.Resource.Org resolves a technical question of copyright law, the extent to which governmental authorities can copyright (and profit from) the materials that they create. The specific question here is the copyrightability of annotations that summarize, but are not part of, the state’s body of enforceable statutes. The opinion of Chief Justice John Roberts for a 5-4 majority holds that the “government edicts” doctrine, long recognized as preventing copyright protection for judicial opinions and statutes, also applies to annotations of those statutes that are prepared at the behest of the legislature. Dissents from Justice Clarence Thomas (joined by Justice Samuel Alito and in large part by Justice Stephen Breyer) and by Justice Ruth Bader Ginsburg (joined by Breyer) would have permitted Georgia to copyright those materials and retain the exclusive right to authorize their sale.

Roberts starts with a summary of the three 19th-century Supreme Court decisions that recognized the government edicts doctrine. The first of those (Wheaton v. Peters) concluded that neither the justices nor the reporter of the Supreme Court’s decisions had any protectible copyright in the opinions of the court. The second, Banks v. Manchester, considered the opinions of the Ohio Supreme Court, as well as syllabi and “head notes” explaining the substance of those opinions; following Wheaton, the Banks court explained that neither the reporter nor the judges of the Ohio court held any protectible copyright in those materials. The third was a companion case to Banks, Callaghan v. Myers, in which the Supreme Court (as Roberts summarizes it) “upheld the reporter’s copyright in several explanatory materials that the reporter had created himself. … Because the reporter was not a judge, he was free to obtain a copyright for the materials that were the result of his own intellectual labor (cleaned up).”

Roberts discerns “a straightforward rule” in those opinions, that judges “cannot be the ‘author’ of the works they prepare ‘in the discharge of their judicial duties’” (quoting Banks). For the majority, that rule applies “both to binding works (such as opinions) and to non-binding works (such as headnotes and syllabi).” Application of that rule to legislators follows logically: “If judges, acting as judges, cannot be ‘authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.” Thus, Roberts reasons: “In the same way that judges cannot be the authors of their headnotes and syllabi, legislators cannot be the authors of … their floor statements, committee reports, and proposed bills.”

With that framework in hand, the opinion turns to Georgia’s annotations. Because Georgia’s Code Revision Commission retained a private company (LEXIS) to prepare the revisions, “[t]he Copyright Act therefore deems the Commission the sole ‘author’ of the work.” In turn, because the Commission “functions as an arm of [the Georgia Legislature],” the Commission is “wield[ing] the legislature’s authority when it works with Lexis to produce the annotations.”

Having determined that it can credit legislators as preparing the annotation, the majority then considers “whether the Commission created the annotations in the ‘discharge’ of its legislative ‘duties’” (again quoting Banks). For Roberts and the majority, it is enough that the Commission prepared the annotations “under Georgia law” and that the legislature acted explicitly to publish them, even though it did not adopt them with a bicameral vote and present them to the governor for signature (as it would have done with legislation). Accordingly, the majority held that “the annotations in Georgia’s Official Code fall within the government edicts doctrine and are not copyrightable.”

The remainder of the opinion dismisses the “several grounds” on which Georgia based its claim of copyright. For example, Georgia maintained that some annotations must be copyrightable, because the act’s definition of works of authorship refers to “annotations.” Roberts points out, though, that the act “refers only to ‘annotations … which … represent an original work of authorship.’” For the majority, “[t]he whole point of the government edicts doctrine is that judges and legislators cannot serve as authors when they produce works in their official capacity.” The statutory reference proves only that “supplemental, explanatory materials are copyrightable when prepared by a private party, or a non-lawmaking official.”

Georgia also “draws a negative inference from” the act’s exclusion from copyright protection of all works prepared by officers or employees of the federal government,” an exclusion that does not extend to the states. That does not suggest to the majority that it should treat all state-created works as copyrightable. Rather, Roberts explains, Congress’ failure to extend that exclusion to the states leaves the states, unlike the federal government, “free to assert copyright in the vast majority of expressive works they produce, such as those created by their universities, libraries, tourism offices, and so on.”

The opinion closes on a more practical note, addressing Georgia’s effort to “minimiz[e] the annotations as non-binding and non-authoritative.” Roberts argues that Georgia’s “description undersells their practical significance,” pointing out that “the economy-class version of the Georgia Code,” which omits the annotations in question, includes a variety of objectionable laws that “requir[e] political candidates to pay hefty qualification fees” and “criminaliz[e] broad categories of consensual sexual conduct, … with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court.” Conversely, Roberts notes, “first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal.”

In the end then, as Roberts summarizes the majority’s holding, courts should not “examin[e] whether given material carries ‘the force of law,’” but instead should “ask only whether the author of the work is a judge or legislator,” because “whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel for the respondents in this case. The author of this post is not affiliated with the firm.]