Laws for the People, By the People, Are Not Copyrightable

A March 23, 2017 order from the United States District Court for the Northern District of Georgia immediately prompted headlines such as “If you publish Georgia’s state laws, you’ll get sued for copyright and lose.”  The case, Code Revision Commission v. Public.Resource.Org, Inc., 244 F. Supp. 3d 1350 (N.D. Ga. 2017), examined whether the Official Code of Georgia Annotated (“O.C.G.A.”) was copyrightable and whether verbatim copying and free distribution by an open records activist were considered copyright infringement.  After a discussion of how annotations are explicitly listed under the Copyright Act as protectable, the many ways to compile annotations, and how the defendant could not sustain the affirmative defense of fair use, the district court granted injunctive relief for the plaintiff.

On October 19, 2018, however, the Eleventh Circuit vacated the injunctive relief and held no valid copyright exists to protect the annotations in the O.C.G.A.  Code Revision Comm’n ex rel. Gen. Assembly of Ga. v. Public.Resource.Org, Inc., 2018 WL 5093234 (11th Cir. Oct. 19, 2018).

The Eleventh Circuit, in an opinion authored by Judge Stanley Marcus, specifically took up the question of whether Georgia may validly have a copyright in the O.C.G.A.’s annotations.  For the answer, the court ultimately focused on who is the author of the O.C.G.A. and whether the copyright interest vests within them.  Here, the court determined the author of the works is constructively “the People,” i.e., the public, and the interest is vested within them.  The People have the copyright interest vested within them because the officials have been given authority by the People to draft the annotations.  Therefore, since the authorship of the annotations is by the People, the annotations are in the public domain and uncopyrightable.

Dusting off Banks v. Manchester, 128 U.S. 244 (1888), the court explained there are three factors to determine whether a work is constructively authored by the People and thus not subject to copyright protection:  the identity of the public officials, the prescribed processes of creating the work, and the amount of authority of the work under the law.  When a particular public official authors, through prescribed legislative processes, a work that carries authoritative weight, the work is constructively authored by the People of the state and uncopyrightable.

Here, the public official is the Code Revision Commission, which is mostly composed of the General Assembly.  Even though the annotations are created by Lexis, a private entity, the court found the control exerted by the Commission was so extensive that the annotations were really a work by the Commission.  Next, the process of creating the annotations is a discharge of the Georgia legislature’s official duties and therefore a prescribed process under the second factor.  Finally, the annotations are given authority through occasional use and citation by the legislature and the courts.  Accordingly, the court vacated the order granting summary judgment and directed that summary judgment be granted for the plaintiff, a non-profit organization that advocates for greater public access to government records.

The impact of declaring these annotations unprotectable by copyright on the legal information marketplace remains to be seen.  One possible result is the end of the practice altogether, because the private vendor does not stand to make a profit.  That long-term impact likely was not planned by either the challengers or the court.

Posted by Ann Fort and Chris Mann.

Back to top