As we discussed in a prior law bulletin, in 2018, the 11th Circuit ruled in favor of an accused copyright infringer, Public.Resource.Org (PRO), finding that annotations to a state code are not copyrightable by the state. The Code Revision Commission (CRC) comprised of Georgia government officials petitioned for certiorari on behalf of the General Assembly of Georgia and the state of Georgia. PRO, seeking to maintain public access to legal materials, filed a brief in support of the petition in order to extend its victory, effectively asking the Supreme Court to make the 11th Circuit’s decision the law of the land.
On April 27, 2020, the Supreme Court did just that. The Supreme Court affirmed the 11th Circuit’s decision that state statutory codes and their annotations, if created by state legislators, are ineligible for copyright protection. Specifically, the court stated that “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.” Georgia v. Public.Resource.Org, Inc., No. 18-1150, 2020 WL 1978707, at *3 (U.S. Apr. 27, 2020).
Georgia’s textual argument, that the Copyright Act lists “annotations” among the kinds of works eligible for copyright protection, was upended by the court. The court stated that the Copyright Act refers only to “annotations . . . which . . . represent an original work of authorship,” yet Georgia’s legislative body cannot be deemed the “author” of the works it creates in its official capacity. Id. at *6. With this decision, the court expanded its prior jurisprudence stating, “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.” Id.
Georgia also argued, unsuccessfully, that the court’s prior jurisprudence should be read to focus exclusively on whether a particular work has “the force of law,” id. at *9, which Georgia suggests the annotations have not. The Supreme Court rejected Georgia’s argument on its face and went on to outline the public policy reasons against using a “force of law” test to determine what is copyrightable.
The Supreme Court’s public policy rationale mirrors the concern of our prior article: “If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. [Emphasis added.] A State could monetize its entire suite of legislative history. With today’s digital tools, States might even launch a subscription or pay-per-law service.” Id. at *11.
With its decision, the Court sided with PRO, maintaining free public access to government records and primary legal materials including annotated state codes created by legislators in their legislative capacity. With that said, it is important to recognize the potential limitations of the decision, for example, where legislators take a less active role in creating the annotations, state-affiliated or state-funded organizations may still suggest that copyright ownership has vested in their authored annotations.