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If No One Owns the Law, Who Owns the Statutory Annotations?

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By Mary Hallerman

Last week, the Supreme Court held in Georgia v. Public.Resource.Org, Inc., that legislators cannot copyright any works that they created in the course of their official duties. Though the holding may appear straightforward and narrow, the Court unearthed the centuries-old government edicts doctrine to reach its decision and emphasized the importance of the circumstances of creation in determining copyright ownership.

What led to the Supreme Court’s excavation of the government edicts doctrine? Oddly enough, alleged infringement on the Internet. A nonprofit, Public.Resource.Org, published the Official Code of Georgia Annotated (“OCGA”) online without Georgia’s permission. As the name suggests, the OCGA contains statutory annotations, which may include summaries of court decisions applying a statute, citations to relevant law review articles, or other reference material regarding the provision. The Code Revision Commission, a state legislative agency, prepares an updated code and contracts with a private third-party (such as Lexis) to prepare the code’s annotations. Every year, the legislature publishes the Commission’s statutory text and the annotations as the “Official Code of Georgia Annotated.” Under its agreement with the Commission, Lexis has the exclusive right to publish, distribute, and sell the OCGA, but must make an unannotated version of the statutory text available for free. The Commission sued Public.Resource.Org for infringement based its publication of the annotations included in the OCGA. Public.Resource.Org counterclaimed that the annotations belonged in the public domain.

Relying on a trio of decisions concerning the copyrightability of judicial opinions, the Court held that legislators could not be authors for purposes of the Copyright Act for any work—such as floor statements and committee reports—that they created in their official capacity. Here, the Court determined that the Commission is an extension of the legislature and created the annotations in the course of its official duties. In a 5-4 decision written by Chief Justice Roberts, the Court thus held that the annotations were not copyrightable.

Both Justice Thomas and Justice Ginsburg authored dissenting opinions. Justice Thomas chided the majority for what he viewed as an oversimplification of the government edicts doctrine. According to Justice Thomas, the majority wrongly assumed that authorship as used in the Copyright Act included all works created in a judge or legislator’s official capacity, and the majority’s test for whether the government edicts doctrine applies will be difficult for courts to administer. Justice Ginsburg separately disagreed with the majority’s conclusion that the annotations were prepared in a legislative capacity. The annotations, Justice Ginsburg reasoned, were provided for reference and were prepared only after the legislature had completed its lawmaking function.

Though largely confined to the circumstances presented in this case, the Court’s opinion does reinforce the importance of the context in which a work is created in determining the ownership of the copyright. For example, copyright in works created by an employee within the scope of her employment generally belongs to her employer. Similarly, copyright in certain works created by an independent contractor likely belongs to her employer if a work was specially ordered and they agree in writing that it is a work made for hire. Public and private entities alike should understand the circumstances leading to the creation of a particular work in order to understand their rights.