Supreme Court to Decide Whether States Can Copyright Annotated State Law
The Supreme Court of the United States has granted certiorari in Georgia et al. v. Public.Resource.Org, Inc., case number 18-1150, to address whether state statutory codes, including annotations, are protectable by copyright.
In October 2018, the 11th Circuit held that the annotations, while not having the force of law, were sufficiently law-like to be regarded as sovereign works constructively authored by the People, and thus were not copyrightable. Code Revision Comm’n for Gen. Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted sub nom. Georgia v. Public.Resource.Org, Inc. (U.S. June 24, 2019).
As the court indicated, copyright interests vest in the author of the work. Id at 1232. In most states, the official code is comprised of statutory text alone, which cannot be copyrighted because, though the legislature drafted the statutory text, it did so only as an expression of the public—the true author of work. Id. Conversely, annotations created by a private party generally can be copyrighted because the annotations are an original work authored by a private publisher. Id. The annotations in the Official Code of Georgia Annotated (OCGA) are not exactly like either of these two types of works; they are published by the LexisNexis Group, but under the supervision and ultimate editorial control of the Code Revision Commission (CRC) comprised of Georgia government officials. The identity of those who drafted the OCGA, the authoritativeness of the work and the process by which the work was created ultimately led the 11th Circuit to its decision that the OCGA was constructively authored by the public, and therefore uncopyrightable.
The petitioner for certiorari, the CRC on behalf of the General Assembly of Georgia and the state of Georgia, asked the Supreme Court to review whether the OCGA may be copyrighted by the state of Georgia. The respondent, Public.Resource.Org (PRO), is a non-profit organization with a mission of improving public access to government records and primary legal materials. Although PRO was successful at the circuit level, it also filed a brief in support of the CRC’s petition for Writ of Certiorari.
With its brief in support of the petition, PRO has doubled down. While PRO’s victory at the 11th Circuit mitigated the risk of copyright infringement in Georgia and other states in the 11th Circuit, PRO is now gambling in an effort to protect potential copyright infringers in other states as well. By encouraging the Supreme Court to make the 11th Circuit’s decision the law of the land, PRO could extend its victory to exempt all states’ statutory codes and annotations from copyright protection.
Regardless of the Supreme Court’s decision, this case will have a significant impact on free, public access to the law and the states’ ability to profit from their commentary on the law. By affirming the 11th Circuit’s decision, the Supreme Court has the opportunity to provide real, meaningful access to the law and to legislators’ counsel on how to interpret the law. While many large firms have the luxury of commercial databases and online libraries to access the annotated state statutes, it is small firms, solo practitioners and the legal education community that stand to meaningfully benefit from a decision by the Court to curtail copyright ownership in published state law.
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