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U.S. Supreme Court to Review Copyrightability of Privately-Produced Annotated State Statutory Compilations

Earlier this week, the Supreme Court granted the State of Georgia’s petition to review the Eleventh Circuit’s decision in Code Revision Comm'n v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018). In that case, the Eleventh Circuit held that the privately-compiled but officially-sanctioned and adopted Official Code of Georgia Annotated (OCGA) was not protected by copyright under the “government edicts” doctrine.

Georgia had made a practice of contracting with Lexis to provide extensive annotations and cross-references to Georgia statutory law (using a rigid set of principles defined by the contract). The resulting Official Code of Georgia Annotated (OCGA) was both adopted by and amended by the Georgia legislature. Georgia claimed ownership of a copyright in the OCGA and Lexis retained the right to publish and make money from sales of the OCGA rather than being paid directly by the State. Non-profit Public.Resource.Org (“PRO”) sought to reproduce and distribute the annotated code (rather than the un-annotated statutes themselves) and Georgia sued to enjoin the activity. Georgia argued that although the statutes themselves were not protected by copyright, the annotations, while “official” and carrying the state’s imprimatur, did not carry the force of law and were, therefore, exempt from precedents dictating that public laws were not copyrightable. Georgia won in the District Court and PRO appealed.

While works of the federal government are not protected by copyright under 17 U.S.C. §105, no such statute governs works by state governments. To resolve the question of copyrightability, the Eleventh Circuit looked to the Supreme Court’s opinion in Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888), which provided guidance on the common-law restrictions on the copyrightability of law, as well as to the decisions of other Circuit Courts.

In looking at Circuit Court decisions, the Eleventh Circuit examined two apparently contrasting lines of cases dealing with the copyrightability of legal texts promulgated by government bodies, including those incorporating matter from private parties. Decisions from the First and Fifth Circuits suggested that the incorporation of even privately-produced matter (such as model codes) into public law voided copyright protection. Conversely, decisions from the Second, Sixth, and Ninth Circuits—and at least one other decision from the First—had declined to void protection to privately-prepared coding systems incorporated into or referenced by state laws and, in another Second Circuit instance, held that tax maps created by a county assessor’s office were subject to copyright.

The Eleventh Circuit sought to resolve the issue by recourse to the question of whether under Banks “the People” (through their legislative representatives) could be considered the “authors” of the OGCA, and, as such, access to the OGCA could not be withheld from them. Because the work was “law-like”— it was created by the legislature, had authoritative status (for example, it was “official” even though the annotations lacked the force of law), and was adopted as an official code by the legislature in a manner procedurally analogous to the adoption of laws—the Eleventh Circuit determined that the OGCA was not subject to copyright protection.

The State of Georgia, in its Petition to the Supreme Court, pointed to the perceived Circuit split in treatment of the “government edicts” doctrine and argued that the annotated code (as opposed to the statutes themselves) should be copyrightable. Public Resource did not oppose review by the Court (although it argued the Eleventh Circuit’s decision was reconcilable with Circuit precedent). Both parties agreed that the essential question for the Supreme Court to resolve was the extent of the “government edicts” doctrine, pursuant to which public law is not protected by copyright. This is a question the Supreme Court has not directly addressed since 1888--one that  implicates both the formal question of authorship (whether law is authored by “the People” and thus belongs to them) and the more policy-oriented question of whether “the People” should have free access to the public law codes that are supposed to govern their conduct.

We will update this discussion as this matter progresses through the Court. Stay tuned.

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Susan Neuberger Weller manages the Trademark & Copyright Practice at Mintz. Susan assists clients with securing and protecting IP assets across the globe. She's worked with clients in a variety of industries, including pharmaceuticals, medical devices, software, electronics, and entertainment.