In a 5-4 decision, the United States Supreme Court held in Georgia et al v. Public.Resource.Org., Inc. (No. 18-1150) (April 27, 2020) that the state of Georgia is not entitled to copyright protection for its official annotated code.

The Copyright Act grants expansive rights for “original works of authorship.” 17 U.S.C. § 102(a). Georgia claimed it was the “author” of the Georgia official annotated code (“OCGA”) and, as the author, enjoyed rights as the copyright owner of the entire work. As the copyright owner, Georgia sought to prevent Public.Resource.Org (“PRO”) from posting digital versions of the Georgia annotated code on various websites without charge and without Georgia’s consent.

Over a century ago, in a trio of cases, the Supreme Court recognized limitations on copyright protection for the work product of judges. See Wheaton v. Peters, 8 Pet. 591 (1834); Banks v. Manchester, 128 U. S. 244 (1888); and Callaghan v. Myers, 128 U. S. 617 (1888). Now commonly known as the “government edicts doctrine,” the principles drawn from these rulings preclude judges from owning any copyright in the works they create in the course of their official duties. In applying this nineteenth century doctrine to a twenty-first century dispute, Chief Justice Roberts explained for the majority in Georgia v. PRO that “[t]he animating principle behind this rule is that no one can own the law. ‘Every citizen is presumed to know the law,’ and ‘it needs no argument to show . . . that all should have free access” to its contents.’”

Relying on this same logic, the majority of the Court held that the government edicts doctrine extended to the official work product of legislators. Thus, neither judges nor legislators can be considered the “authors” of the works they produce in the course of their official duties. The rule applies not only to the law itself, but also to the annotations associated with the law because the annotations were authored by an arm of the legislature in the course of its official duties.

The OCGA is the exclusive and official codification of the state laws of Georgia. Assembled by a state entity called the Code Revision Commission (“the Commission”), the OCGA includes the text of every Georgia statute currently in force, as well as various non-binding supplementary materials, including a set of annotations that appear beneath each statutory provision. The Commission is responsible for consolidating bills into a single Code, for reenactment by the legislature, and for contracting with a third party to produce the annotations. These annotations include, among other things, summaries of judicial decisions applying a listed provision, summaries of any relevant opinions of the state attorney general, and a list of related reference materials.

Each year, the Commission submits its proposed statutory text and accompanying annotations to the legislature for approval. The legislature then votes to do three things:

  1. enact the “statutory portion of the codification of Georgia laws;
  2. merge the statutory portion with the annotations; and
  3. publish the final merged product “by authority of the state” as the OCGA.

For the most recent version of the OCGA, the Commission contracted with Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement. By this contract, the State of Georgia maintained its claim in the copyright of any of the work product generated by Matthew Bender & Co. under the agreement.

PRO is a nonprofit organization that aims to facilitate public access to government records and legal materials. Without permission, PRO posted a digital version of the OCGA on various websites, where it could be downloaded by the public without charge. PRO also distributed copies of the OCGA to various organizations and Georgia officials.

The Commission sent PRO several cease-and-desist letters asserting that PRO’s actions constituted copyright infringement. PRO refused to cease its activities, and on behalf of the state of Georgia and the Georgia legislature, the Commission subsequently filed suit. Notably, Georgia did not claim any copyright in the statutory text or numbering scheme of the statutes; the copyright infringement claim was limited to the annotations in the OCGA. PRO counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, was in the public domain. As a work in the public domain, PRO asserted, the OCGA was freely available to all members of the public for copying and distribution.

The district court agreed with the Commission and concluded that because the OCGA annotations were not “enacted in to law” and “lacked the force of law,” they were eligible for copyright protection. The district court granted partial summary judgment to the Commission and entered a permanent injunction requiring PRO to cease its distribution activities and to remove the digital copies of the OCGA from the internet. The Eleventh Circuit reversed.

Relying on its review of the trio of cases which form the pillars of the government edicts doctrine, the Eleventh Circuit reasoned that “the People” are “the constructive authors” of the law, and judges and legislators are merely “draftsmen . . . exercising delegated authority.” The Eleventh Circuit held that the “ultimate inquiry” was whether a work is “attributable to the constructive authorship of the People,” and set forth a three-part test to guide this analysis. Applying that test, the Eleventh Circuit reversed the entry of judgment for the Commission, vacated the injunction against PRO, and directed entry of judgment in favor of PRO.

On review, the majority of the Supreme Court agreed with the Eleventh Circuit’s result, but not its reasoning. The majority’s review of the same trio of nineteenth century precedent led it to conclude that central to the government edicts doctrine was the meaning of the term “author” in the Copyright Act. This construction established a “straightforward rule” that “because judges are vested with the authority to make and interpret the law,” they cannot be the “author” of the works they prepare “in the discharge of their judicial duties.” Accordingly, and “[r]ather than attempting to catalog the materials that constitute ‘the law,’ the doctrine bars the officials responsible for creating the law from being considered the ‘author[s]’ of ‘whatever work they perform in their capacity’ as lawmakers.” In short: “Because these officials are generally empowered to make and interpret law, their ‘whole work’ is deemed part of the ‘authentic exposition and interpretation of the law’ and must be ‘free for publication to all.’”

With this reasoning, the majority quickly concluded that if judges cannot be the “authors” of their works under the Copyright Act because of their authority to make and interpret the law, then legislators, acting as legislators, cannot be “authors” either. This government edict doctrine further precludes claims of copyright in any official works, such as legislation, along with “explanatory and procedural materials” legislators create as well as “(for example) their floor statements, committee reports, and proposed bills.” These materials are part of the “whole work done by [legislators],” so they must be “free for publication to all.”

In ultimately rejecting Georgia’s claim of copyright ownership, the majority applied a two-step analysis:

First, the Court determined whether the Commission’s work was an extension of the Georgia legislature;

Second, the Court examined whether the Commission created the annotations in the discharge of its legislative duties.

The Court answered both inquiries in the affirmative, based on the record evidence of the Commission and its activities. Court determined that because the Commission created the annotations in the course of its legislative duties and as extension of the legislature, the annotations fall within the scope of the government edicts doctrine and are not copyrightable.

In dissent, Justice Thomas noted that the majority decision may impact any copyright claim “25 other jurisdictions—22 States, 2 Territories, and the District of Columbia” may have thought they had in their own annotated codes, as each of these jurisdictions produce annotated codes in a manner similar to that which Georgia uses to produce the OCGA.

Chief Justice Roberts delivered the opinion of the Court, in which Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Thomas filed a dissenting opinion, in which Justice Alito joined, and in which Justice Breyer joined as to all but Part II–A and footnote 6. Justice Ginsburg filed a dissenting opinion, in which Justice Breyer joined.