Can the State of Georgia Own a Copyright in its Official Code?

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The Official Code of Georgia Annotated (the “OCGA”) is made up of not only the statutory laws, but also various annotations, including history lines, repeal lines, commentaries, case notations, law review article excerpts, Attorney General opinion summaries, editor’s notes, and other references (the “Annotations”).  The State of Georgia (the “State”) contends that it owns the copyright in the Annotations, while a non-profit entity contends that because the Annotations are part of the Official Georgia code, the Annotations cannot be the subject of a valid copyright and are in the public domain.  The Supreme Court will decide this issue later this year.

The Annotations were created by a division of LexisNexis Group (“Lexis”) pursuant to an agreement that it entered into with the State.  Under the agreement, Lexis is responsible for the publication, editing, and maintenance of the OCGA, and in exchange, Lexis has been granted the exclusive right to publish the OCGA, and profits from its distribution of online and print versions of the OCGA.  Lexis is supervised in its editing, updating and publication of the OCGA by the Georgia Code Revision Commission (“Commission”), which was appointed and assigned the ultimate responsibility for editing and publishing the OCGA by the Georgia legislature in 1977.

The dispute first arose in 2013, when Public-Resource.Org. (“PRO”) purchased the 186-volume set of the OCGA and all supplements, scanned them, and uploaded them to its website to give the public free access to the entire OCGA. PRO is a non-profit organization which undertakes to improve public access to government records and legal materials.  The Commission sent letters to PRO alleging that PRO’s publication of the OCGA violated the State’s copyright in the Annotations, and ultimately filed an action for copyright infringement with the United States District Court for the Northern District of Georgia.

The District Court sided with the State on the issue, and found that the State owned a valid copyright in the Annotations and that PRO had infringed such copyright in Code Revision Comm’n v. Pub. Res. Org, Inc., 244 F.Supp.3d 1350 (N.D. Ga. 2017).  However, the Eleventh Circuit found to the contrary on appeal in Code Revision Com’n v. Public Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018).  In particular, the Eleventh Circuit found:

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People.  To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia.  In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will.  The resulting work is intrinsically public domain material, belonging to the people, and, as such, must be free for publication by all.

Id. at 1255.

The Supreme Court granted certiorari of the case for the 2019-20 term, and heard oral arguments on December 2, 2019.  During the arguments, the Justices appeared to be genuinely torn between their concern over “why would we allow the official law to be hidden behind a pay wall?,” as stated by Justice Gorsuch, Transcript, at 9, and their concern that ruling that the Annotations are in the public domain “is going to create problems in terms of incentives for creating these annotations in the first place.”  Justice Kavanaugh, Transcript, at 55.  The Justices also noted that there is established legal precedent that annotations created in connection with official case reporters are protected by copyright.  E.g., Callaghan v. Myers, 128 U.S. 617 (1888).  However, in the case of the OCGA, there is a state law that expressly provides that the statutory portions of the Code “shall be merged with annotations . . . and [are] published by authority of the state . . . and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’”  O.C.G.A. § 1-1-1.  It will be interesting to see how the Supreme Court ultimately decides the issue later in the current Term.

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