When does the law belong to the People, and when does it constitute private property? If the law is not subject to copyright protection and is free for all to copy and use, why is that, and how wide is the scope of that doctrine?
In Georgia et al v. Public.Resource.Org, Inc., 590 U.S. ___ (2020), Slip Op. 18-1150, the Supreme Court addressed the copyrightability of annotations made to the Georgia statutory code by a state code revision commission. The commission was established by the Georgia legislature to recodify Georgia’s disparate statutes into a single code for reenactment and to contract with a third party to produce annotations. As to the latter task the commission entered into an arrangement with LexisNexis to create the annotations in which the State retained copyright. The commission, on behalf of the State, sued a public interest organization which had reproduced and disseminated copies of the entire annotated code in violation of the copyright claimed by the State in the annotations.
To begin with, it is helpful to clarify what was not at issue in the Public.Resource.Org case. No one disputed that the statutory text itself – – laws enacted by the Georgia legislature – – is in the public domain and not subject to copyright. Nor is there any dispute that privately authored annotations to a statute could be the proper subject of copyright. Such claims had been upheld in earlier cases. Rather, the question arose as to whether copyright could apply in circumstances where a commission established by a state legislature oversaw and approved, on a “work-made-for-hire” basis, annotations that provided commentary and case summaries to assist in statutory interpretation, but where those annotations themselves lack the force of law.
Applying the “government edicts doctrine,” the Supreme Court clarified the circumstances under which state actors cannot claim a copyright interest in their works. Specifically, the Court stated that the doctrine prevents “officials empowered to speak with the force of law [from being considered] the authors of…the works they create in the course of their official duties.” Because the revision commission was construed by the Court to be an arm of the Georgia legislature and because the creation of the annotations was done in the course of the official duties of the legislature, there could be no copyright interest in the annotations.
Notably, under the Copyright Act, “work[s] prepared by an officer or employee of the United States Government as part of that person’s official duties” are not subject to copyright protection and are in the public domain. As explained by the Court, “the bar on copyright protection for federal works sweeps much more broadly than the government edicts doctrine does,” since latter only applies to state officials with the “power to speak with the force of law,” not the vast majority of state actors.
As a practical matter, nearly half of the states have entered into similar arrangements under which the legislature contracts with a private party to create statutory annotations and profits from the resulting copyrighted work. Those states will now have to revisit those arrangements. It remains to be seen whether state legislatures will continue to oversee the creation of officially annotated codes and whether legal research entities like LexisNexis will continue to be involved.
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