Equal access to the law! Supreme court holds states cannot copyright annotated statutes

May 01, 2020

Intellectual Property Alert

Author(s): Jason T. Kunze, Jennette W. Psihoules

On April 27, 2020, the U.S. Supreme Court ruled in a 5–4 decision delivered by Chief Justice Roberts and joined by Justices Sotomayor, Kagan, Gorsuch and Kavanaugh that copyright protection does not extend to the annotations in the Official Code of Georgia Annotated (the OCGA).[1] The decision upholds the principle that no one can own the law, but may impact the future creation of statutory annotations.

The OCGA incorporates a complete recitation of every Georgia statute currently in force and related supplementary materials. In particular, the OCGA includes annotations for each statute comprised of summaries of judicial decisions, summaries of relevant opinions of the state attorney general, a list of associated law review articles and other reference materials, as well as editor’s notes providing information on the statute’s origins and history. The OCGA is prepared by the 15-member Code Revision Commission; notably, a majority of those 15 members are Georgia state senators or representatives.[2] Once presented by the Commission, the OCGA, including the annotations, is voted on and approved by the Georgia State Legislature.

Public.Resource.Org (PRO) is dedicated to providing public access to government records and legal materials. PRO posted the OCGA on a number of websites for download at no cost, and distributed copies to organizations and officials without permission. The Commission sued PRO, claiming PRO’s unauthorized distribution of the annotations constituted copyright infringement. The district court found for the Commission on the basis that the annotations were subject to copyright protection. The Eleventh Circuit reversed the lower court’s decision, and the Supreme Court granted certiorari.

The Supreme Court held that the OCGA annotations are ineligible for copyright protection based on the animating principle that no one can own the law, and that all should know and have free access to the law. The majority opinion looked to the government edicts doctrine rooted in 19th century law,[3] to find that “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.”[4] Thus, the focus of the copyright analysis is on authorship, not subject matter. Instead of trying to determine whether a work constitutes the law, this rule looks to who created the law and in what capacity to decide whether the work is protectable.

In applying this rule, Chief Justice Roberts concludes that the OCGA was authored by legislators acting in their legislative capacity. In support, he reasons that the Commission serves as an extension of the Georgia Legislature in preparing and presenting the annotations, and the annotations are written in the course of the legislators’ (the Commission’s) legislative responsibilities. Because the annotations were authored by legislators in the course of their legislative duties, the OCGA annotations are not protected by copyright.

Dissenting opinions

Justice Thomas, joined by Justice Alito and in part by Justice Breyer, delivered a dissenting opinion. Justice Thomas disagrees with the majority’s interpretation of the government edicts doctrine, claiming that the majority is overextending the doctrine and noting that nearly half the states align with Georgia’s view. He argues the authority reinforces his position—the accompanying notes and opinions to statutes and regulations should be protected by copyright, as they do not have the force of law.[5] Justice Thomas also finds support in the Copyright Act that the OCGA annotations are copyrightable. Additionally, he discusses the implications of the majority’s new rule, including the difficulties in administering the rule and the potential for states to stop producing annotated codes altogether. Thomas concludes by stressing that a question involving the scope of copyright protection has generally been tasked to Congress, and on that basis, believes the Court has strayed from its proper role.

Justice Ginsburg also authored a dissenting opinion. Justice Ginsburg agrees with the majority’s articulated rule; however, she disagrees with its application. She finds that the OCGA annotations fail to meet the second part of the test because the annotations are not done in a legislative capacity. Justice Ginsburg states that the OCGA annotations are not part of the Georgia Legislature’s lawmaking process for three reasons: (1) the annotations are not written contemporaneously with the corresponding statutes; instead, the statutes are already enacted when the annotations are prepared; (2) the annotations are descriptive rather than prescriptive; and (3) the annotations are provided for the purpose of reference and informing the public. Since the creation of the annotations was not done by the legislators in their law-making capacity, Justice Ginsburg concludes that they are subject to copyright protection.

The (copy)rights battle: unencumbered access vs. protection of original works

The tension between protecting original works and providing access to government works is not easily resolved, as illustrated by the 40-plus pages of majority and dissenting opinions produced by the Supreme Court on the subject. Notably, the analysis and the Court’s three separate opinions were not split on the conventional ideological grounds of the justices.

The Court’s decision promotes equal access to government (or quasi-government) texts over private ownership rights, based on the principle that no one can own the law. The majority raises a concern that if statutory annotations and opinions were copyrightable, then states could charge for access to such materials, potentially leaving those without means unable to access the law. Justice Roberts goes as far to say that, if annotated statutes were protected by copyright, states could institute a subscription or pay-per-law service.

On the other hand, the objective of the Copyright Clause of the U.S. Constitution is to promote creation through the protection of copyrights. The Copyright Act explicitly allows for the protection of “original works of authorship.”[6] As Thomas suggests, this decision may have a stifling effect on innovation and in this context, influence states to stop producing annotated codes—although this may be a far-fetched argument. Nonetheless, in that extreme case, the public would be without access to information and opinions on the law, which echoes the concern of the majority.

  1. Georgia et al. v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ____ (2020).
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  2. The Commission also receives funding through appropriations for the Georgia Legislature and is staffed by the Office of Legislative Counsel. Justice Roberts presents that the Commission’s role in compiling the statutory text and annotations is set forth in the Georgia Constitution and falls “within the sphere of legislative authority.” Harrison Co. v. Code Revision Comm’n, 244 Ga. 325, 330, 260 S. E. 2d 30, 34 (1979).
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  3. 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).
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  4. Georgia, slip op. at 9.
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  5. Georgia, slip op. at 3 (Thomas, J., dissenting).
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  6. 17 U.S.C. § 102(a).
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