SCOTUS to Decide Whether States May Copyright Statutory Annotations

Rarely does a Supreme Court case implicate the work of state legislatures like Georgia v. Public.Resource.org. In this case the Court will decide whether a state may copyright statutory annotations.

Georgia, through a Code Revision Commission, made up of the Lieutenant Governor, the Speaker of the House, members of the Senate and House, and others, contracts with Lexis to draft the statutory annotations published in the Official Code of Georgia Annotated (OCGA).

Annotations include “history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.”

Georgia claims it may copyright these annotations. Public.Resource.org disagrees and has, among other things, copied and uploaded the OCGA on its website and made it publically available for free.

According to the Eleventh Circuit everyone agrees on this:  Copyright interests vest in the author of a work. State statutes may not be copyrighted because the author is “the People.” Annotations created by a private party may be copyrighted because they are an original work created by a private publisher. Annotations in the OCGA fall somewhere between.

While the Eleventh Circuit noted annotations don’t carry the force of law it nevertheless held Georgia may hold no copyright to them.

First, while a private party, Lexis, is responsible for drafting the annotations it does so under the “highly detailed instruction” of the Code Revision Commission. “[T]he connection between the Commission and the elected legislators who make up the General Assembly is so close that the Commission may be properly regarded as one in the same with the legislators for our purposes.” Also, the Commission and the General Assembly approve the annotations.

Second, while the annotations don’t carry the force of law they are “law-like.” “Having been merged by the General Assembly with the statutory text into a single, unified edict, stamped with the state’s imprimatur, and created and embraced by the same body that wrote the text that they explicate, the annotations have been suffused with powerful indicia of legal significance that is impossible to ignore.”

Finally, the annotations are created using a process “very closely related” “to the process by which the statutory provisions were made into binding law.” “[T]he annotations are prepared by the Commission outside of the normal channels of the legislative process . . . and are not voted on individually in the way that Georgia session laws are.” But the Georgia General Assembly votes to adopt annotations like it would any other law.

The last time the Supreme Court reviewed the rule that government edicts can’t be copyrighted was 1888. A lot has changed since then including the volume, cost, and sophistication of materials governments create…and of course the means of disseminating information has changed vastly as well.