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IP Alert: Supreme Court Agrees No Copyright in Official State Code Annotations

April 27, 2020

Today, in Georgia v. Public, Inc., the U.S. Supreme Court held that the annotations contained in Georgia’s official annotated code cannot be the subject of copyright protection. In a 5-4 decision, the Court held that the “government edicts” doctrine bars copyright protection for works that are created by judges or legislators in the course of their judicial or legislative duties. The Court determined that the code annotations, thought to be prepared by a third party under a work-for-hire agreement, were in fact authored by the Georgia Code Revision Commission. This commission, an arm of the Georgia legislature, prepared the code annotations in accordance with its duties as a legislative entity. For these reasons, a majority of the justices determined that the annotations were “government edicts,” which cannot be covered by copyright protection. Today’s decision affirms a prior decision of the Eleventh Circuit Court of Appeals, discussed in Fitch Even’s earlier alert on this case.

Georgia advanced a number of arguments for why, in its view, the annotations were protectable. First, section 101 of the Copyright Act specifically lists “annotations” among the types of works that are eligible for copyright protection. The Court held that while annotations might be copyrightable when prepared by a private party or a non-lawmaking entity, the statute does not speak to whether those same materials are copyrightable when prepared by a judge or legislator, or otherwise vitiate the government edicts doctrine.

Second, Georgia pointed out that although the Copyright Act excludes from copyright protection any works that are prepared by federal government employees, it contains no such exclusion for works prepared by state government employees. Dismissing this argument, the Court noted that the bar of copyright protection for federal employees “sweeps much more broadly” than the government edicts doctrine does. In other words, the bar of copyright protection for federal employees applies to all federal officials without regard for the nature of their position or the scope of their authority. The “government edicts” doctrine, though, is limited to lawmaking officials of the states.

Finally, the Court rejected Georgia’s policy-based argument that without copyright protection, Georgia and other states would be unable to induce private parties to assist in preparing annotated codes. The Court held that such a policy question was addressable by Congress, not rectifiable by the courts.

Georgia next argued that the government edicts doctrine did not encompass the annotations because the annotations did not themselves have the force or effect of law. The Court rejected this doctrine because annotations “come from an official with authority to make and interpret the law.” Under Georgia’s logic, the Court observed, states could own any legislative materials helpful in interpreting statutes, such as floor statements, proposed bills, or committee reports: “If everything short of statutes and opinions were copyrightable, than States would be free to offer a whole range of premium legal works for those who can afford the extra benefit.” Further, if this were the law, “[a] State could monetize its entire suite of legislative history.”

Four justices dissented. Justice Thomas would have held that while statutes and regulations could not be copyrighted, accompanying notes that themselves lack legal force could be. Justice Ginsberg offered a separate dissenting opinion asserting that the annotations were not made “in a legislative capacity,” and thus were subject to copyright protection.

Today’s decision definitively resolves a long-simmering debate between entities on both sides of the issue, at least under the current version of the Copyright Act. It appears that any change in the result of this case will need to come from Congress.

For more information on this decision, please contact Fitch Even partner Allen E. Hoover, author of this alert.

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