Both the state of Georgia and a non-profit corporation, Public.Resource.Org (PRO) have filed writs of certiorari with the United States Supreme Court seeking its decision on whether annotations commissioned and approved by the state may be copyrighted. Stated differently, that is, in the manner in which PRO asserts the issue, these parties seek to figure out whether citizens can have access to the raw materials of our democracy.
This case arises out of the Official Code of Georgia Annotated (OCGA), which was re-codified and annotated in the 1970s. At this time, the Code Revision Commission of the Georgia General Assembly contracted with the Michie Company to prepare and publish the OCGA. The Michie Company proceeded to prepare a manuscript containing an unannotated compilation of Georgia statutes, which was then adopted as Georgia’s official code. Michie, then, added annotations and the OCGA, as it exists today, became effective in 1982.
Currently, Georgia is under contract with Lexis Nexis to maintain, publish and distribute the OCGA. States often strike deals of this type with private publishers. PRO, in its petition to the Supreme Court, claims that publishers subsequently use tools to control who has access to the text of the law, how much they must pay, and under what terms. However, to ensure that Georgia law is readily accessible to the general public, pursuant to agreement, Lexis is required to publish the code’s unannotated statutory text online, free of charge. Moreover, a CD-ROM version of the OCGA, complete with annotations, is available to the general public without charge at over 60 state and county-operated facilities throughout Georgia, such as libraries and universities.
PRO is operated by Carl Malamud and its primary activity is publishing government documents online, including several state codes, and encouraging the public to access them for free. Despite knowledge of Georgia’ registered copyright, PRO purchased printed volumes and supplements of the OCGA, scanned them, and posted them online. After PRO refused to comply with cease and desist letters, Georgia filed an infringement suit in district court and PRO counterclaimed for judgment of non-infringement. PRO continued reproducing the OCGA after Georgia had filed its suit.
Copyright subsists in original works of authorship fixed in a tangible medium of expression and covers both published and unpublished works. Copyright grants owners a bundle of exclusive rights, including the rights of reproduction and distribution. This protection only extends to the original expressions of ideas and not the ideas themselves. Thus, even if certain elements in a work are ineligible for protection, other elements may still be protected.
It is well-settled that judicial opinions cannot be copyrighted. The Supreme Court last addressed this matter in 1888 when it ruled that “the whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.” The so-called government edicts doctrine is a narrow, judicially created exception to copyright protection for certain works having the force of law. Under this doctrine, the standard that is applied is whether the work sought to be registered has “the force of law.” If it does, it cannot be copyrighted. Some lower courts have applied this principle to statutes but the status of other sorts of legal materials has not been definitively resolved.
No statute directly codifies the government edicts doctrine but instead, the Copyright Act provides that “copyright protection is not available for any work of the United States Government.” That being said, there is no parallel provision for works of state and local governments. Moreover, in a compendium issued by the Copyright Office, it was decreed that a work that does not constitute a government edict may be registered as a copyright “even if it was prepared by an officer or employee of a state, local, territorial, or foreign government while acting within the course of his or her official duties.” The Copyright Office also recognizes that copyright protection is available for annotations that summarize or comment upon legal materials issued by the federal, state, local, or foreign government, unless the annotations themselves have the force of law. If this doctrine extends to works that lack the force of law, such as annotations to a statute, those works would thereby be uncopyrightable
Annotations include descriptions of judicial decisions interpreting the statutes. In particular, in viewing a statute, its meaning is not always necessarily clear. Instead, it is usually necessary to go to the annotations, which lead the court decisions where the judges actually inform as to the meaning of the words of the statute. At times, courts will cite to the annotations as authoritative sources on statutory meaning and legislative intent.
The Georgia General Assembly has repeatedly made clear that only the statutory portion of the OCGA has the force of law and that the annotations constitute mere research aids lacking any legal effect. Due to this, Georgia does not claim copyright protection in the OCGA’s statutory text and numbering but does claim that it holds a registered copyright in the annotations thereof.
The district court held the OCGA annotations were copyrightable and that PRO’s activities constituted infringement, thereby entitling Georgia to injunctive relief. The federal appeals court reversed this finding, ruling against the state and for PRO. Unsurprisingly, the state filed a petition with the Supreme Court asking them to take up the question. On the other hand, in an unusual move, despite its success at the appellate level, PRO has also urged the court to hear the dispute. Indeed, PRO contends, approximately 20 other states have claimed that parts of similar annotated codes are copyrighted so this is an important and relevant case.