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IP Alert: Eleventh Circuit's Decision Clarifies Scope of "Zone of Indeterminacy" Material

October 29, 2018

On October 19, in Code Revision Comm’n v. Public.Resource.Org, Inc., the Eleventh Circuit considered the issue of whether a state’s annotations to its legislative code may be copyrighted. Under a long line of decisions in copyright law, state codes and statutes cannot be copyrighted. Courts have held that such materials represent an exercise of sovereign state authority whose authorship is attributed to the people of the state generally. In contrast, privately authored comments about state laws face no such restrictions, are not the exercise of sovereign authority, and can be copyrighted. The line between what constitutes state-authored codes and privately authored comments can be blurry, as illustrated by previous cases involving privately authored building codes that have been adopted as law.

This case demonstrates the difficulty in ascertaining what may and may not be copyrighted. The Official Code of Georgia Annotated (OCGA) is an annotated compilation of statutes that is published and maintained by LexisNexis Group, a private entity. The Code Revision Commission, which is backed by the Georgia General Assembly, supervises the work of Lexis and exercises final editorial control over the contents of the OCGA. An entity identified as Public.Resource.Org (PRO), a nonprofit organization, purchased volumes of the print version of the OCGA and uploaded them to its website to be freely accessed by the public.

The Commission sued PRO seeking an injunction. PRO filed a counterclaim seeking a declaratory judgment, asserting that there was no valid copyright in any portion of the OCGA because it “is in the public domain.” The district court granted the Commission’s motion for partial summary judgment and denied PRO’s motion, finding that the annotations in the OCGA lacked the force of law and thus were not public domain material. PRO appealed.

The Eleventh Circuit reversed. The court concluded that the annotations in the OCGA were not copyrightable because, in its view, these annotations were constructively authored by the state and “sufficiently law-like so as to be properly regarded as a sovereign work.” In its analysis of the ownership of the work, the court referred to several Supreme Court cases to define the term “authorship” as referenced in the Copyright Act. One such case, Banks v. Manchester, established that “authorship” is directly correlated to public policy principles that endorse free access to interpretations of the law. The Banks case has been construed to signify that the “law,” whether codified via legislative act or contained in judicial opinions, is in the public domain and not amenable to copyright.

The Eleventh Circuit identified three factors in characterizing the authorship of the OCGA: the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. The court initially characterized the OCGA as existing in a “zone of indeterminacy . . . between edicts that carry the force of law and those that do not,” a zone that the court characterized as a “small band” of circumstances in which “a government work may not be characterized as law, and yet still be so sufficiently law-like as to implicate the core policy interests undergirding Banks.”

The court concluded that Georgia’s legislative body created the annotations in its direct exercise of sovereign authority, a factor favoring public domain treatment. Additionally, the courts regarded the annotations as authoritative sources, and in fact these annotations were adopted as part of the laws of Georgia through a legislative process. The court found it significant that the Georgia legislature voted to make the OGCA the official codification of Georgia’s laws. “In other words,” the court held, “the OCGA annotations are not only authored at the direction and under the close supervision of the Georgia General Assembly, but they also obtain their peculiar status as official annotations because they are adopted annually by the General Assembly.” Based on the above, the court determined that the OCGA was public domain material and not copyrightable.

The court cautioned that not all materials authored by a state government employee are in the public domain: “[T]he mere fact that a work was created by a state-paid employee in his capacity as an employee is not enough to trigger the rule in Banks.” Rather, there must be “[s]omething more.” “Specifically,” the court held, “the government official must be entrusted with unique powers beyond those possessed by the typical government employee, such as the power to pronounce official interpretations of the law.” But the OGCA easily met this test because it was endorsed by Georgia’s legislators. “The annotations cast an undeniable, official shadow over how Georgia laws are interpreted and understood. Indeed, Georgia’s courts have cited to the annotations as authoritative sources on statutory meaning and legislative intent.”

This noteworthy decision will provide some guidance for courts wrestling with questions about whether other law-like materials can be subject to copyright protection.

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

Fitch Even law clerk Kerianne A. Strachan contributed to this alert.

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